R v Baz - [2005] QCA 420

SUPREME COURT OF QUEENSLAND

CITATION:

R v BAZ [2005] QCA 420

PARTIES:

R
v
BAZ
(applicant/appellant)

FILE NO/S:

CA No 133 of 2005
CA No 160 of 2005
DC No 508 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

18 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2005

JUDGES:

McMurdo P, Williams JA and Muir J
Separate reasons for judgment of each member of the Court, Williams JA and Muir J concurring as to the orders made, McMurdo P dissenting

ORDER:

1. Appeal against conviction allowed
2. The convictions on counts 2 and 3 are quashed and a retrial is ordered on those counts

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - appellant charged with one count of indecent treatment of a child under 12 (count 1) one count of indecent treatment of a child under 16 (count 2) and one count of sexual assault (count 3) - appellant convicted after trial on counts 2 and 3 but found not guilty of count 1 - complainant appellant's natural daughter - complainant did not recall incident comprising count 1 at committal hearing and only gave evidence of incident at trial - complainant made preliminary complaint to her school principal concerning count 1 - inconsistency between complainant's evidence and principal's evidence regarding content of preliminary complaint - included in preliminary complaint to principal was a false complaint that she had been bashed by the appellant's de facto wife - very soon after events giving rise to count 3 complainant made a preliminary complaint to a school counsellor that she had been sexually assaulted by her father - inconsistency between complainant's evidence at trial and school counsellor's evidence of complaint regarding whether there were three specific incidents or whether the conduct was ongoing and continuing - trial judge handed note from the jury indicating that they were concerned that "the evidence given is beyond that contained in the charges" - evidence that complainant a troubled and disturbed girl throughout the whole of the relevant period and that she blamed the appellant for the death of her mother and asserted that he was not her father - no evidence tending to support or corroborate any of the complainant's allegations

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION - trial judge directed jury they should look at the complainant's evidence "very carefully and scrutinise it with great care" when considering count 1 - whether trial judge erred in limiting direction to count 1 - whether trial judge erred in not directing the jury that they should scrutinise the complainant's evidence carefully and needed to be satisfied of its accuracy and reliability beyond reasonable doubt before they could convict - whether a miscarriage of justice resulted from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baz

Details

AGLC: R v Baz [2005] QCA 420
Case: [2005] QCA 420
Decision Date: 18 November 2005

CaseChat Overview and Summary

The appellant, Baz, was convicted in the Supreme Court of Queensland on two counts of indecent treatment of a child under 16 and sexual assault. The complainant was the appellant's natural daughter, who did not recall the incident concerning the first count at the committal hearing but gave evidence of it at the trial. There were inconsistencies between the complainant's evidence and other witnesses, and no corroborative evidence to support her allegations. Baz appealed against his conviction, arguing that the trial judge misdirected the jury regarding the approach they should take to the complainant's evidence, and that the verdicts were unreasonable or unsafe and unsatisfactory.

The legal issues before the court were whether the trial judge erred in directing the jury to scrutinise the complainant's evidence carefully and be satisfied of its accuracy and reliability beyond reasonable doubt before convicting, and whether the trial judge erred in not directing the jury that they should consider whether there was a reliable complaint made as to sexual misconduct on the part of the appellant. The court also considered whether the appellant was disadvantaged by his barrister's advice not to give evidence and not being present on the last day of the trial, and whether there were any irregularities in relation to the jury.

The court found that the trial judge did err in not directing the jury to be satisfied beyond reasonable doubt of the accuracy and reliability of the complainant's evidence, and in not directing the jury to consider whether there was a reliable complaint made as to sexual misconduct on the part of the appellant. The court held that these errors amounted to a miscarriage of justice, and that the verdicts were unreasonable or unsafe and unsatisfactory. The court also found that the appellant was not disadvantaged by his barrister's advice, and that there were no irregularities in relation to the jury.

The court quashed the convictions on counts 2 and 3, and ordered a retrial on those counts.

Orders

Orders of the court

1. Appeal against conviction allowed

2. The convictions on counts 2 and 3 are quashed and a retrial is ordered on those counts

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BAZ [2005] QCA 420
PARTIES:	R v BAZ (applicant/appellant)
FILE NO/S:	CA No 133 of 2005 CA No 160 of 2005 DC No 508 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	18 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2005
JUDGES:	McMurdo P, Williams JA and Muir J Separate reasons for judgment of each member of the Court, Williams JA and Muir J concurring as to the orders made, McMurdo P dissenting
ORDER:	1. Appeal against conviction allowed 2. The convictions on counts 2 and 3 are quashed and a retrial is ordered on those counts
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - appellant charged with one count of indecent treatment of a child under 12 (count 1) one count of indecent treatment of a child under 16 (count 2) and one count of sexual assault (count 3) - appellant convicted after trial on counts 2 and 3 but found not guilty of count 1 - complainant appellant's natural daughter - complainant did not recall incident comprising count 1 at committal hearing and only gave evidence of incident at trial - complainant made preliminary complaint to her school principal concerning count 1 - inconsistency between complainant's evidence and principal's evidence regarding content of preliminary complaint - included in preliminary complaint to principal was a false complaint that she had been bashed by the appellant's de facto wife - very soon after events giving rise to count 3 complainant made a preliminary complaint to a school counsellor that she had been sexually assaulted by her father - inconsistency between complainant's evidence at trial and school counsellor's evidence of complaint regarding whether there were three specific incidents or whether the conduct was ongoing and continuing - trial judge handed note from the jury indicating that they were concerned that "the evidence given is beyond that contained in the charges" - evidence that complainant a troubled and disturbed girl throughout the whole of the relevant period and that she blamed the appellant for the death of her mother and asserted that he was not her father - no evidence tending to support or corroborate any of the complainant's allegations CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION - trial judge directed jury they should look at the complainant's evidence "very carefully and scrutinise it with great care" when considering count 1 - whether trial judge erred in limiting direction to count 1 - whether trial judge erred in not directing the jury that they should scrutinise the complainant's evidence carefully and needed to be satisfied of its accuracy and reliability beyond reasonable doubt before they could convict - whether a miscarriage of justice resulted from…