R v BBB

[2006] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBB [2006] QCA 232

PARTIES:

R
v
BBB
(appellant)

FILE NO/S:

CA No 52 of 2006
DC No 2093 0f 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

21 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2006

JUDGES:

Williams, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER:

1. Appeal against conviction on count 2 allowed
2. Conviction on count 2 is quashed and verdict of acquittal is entered

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCE – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – RAPE AND SEXUAL ASSAULT – PROOF AND EVIDENCE – where applicant convicted of a number of sexual offences including digital rape in relation to his stepdaughter – where no specific occasion was particularised in relation to the charge of rape – where Crown conceded on appeal that the charge was not sufficiently particularised – whether evidence was sufficiently cogent to justify conviction

Director of Public Prosecutions v Fowler (1984) 154 CLR 627, applied
S v The Queen (1989) 168 CLR 266, applied

COUNSEL:

G P Long for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Qld) for the respondent

HOLMES JA:  The applicant was convicted of two counts of indecent treatment of a child under 16 with a circumstance of aggravation, one count of rape and one count of maintaining an unlawful relationship.  He appeals against his conviction on the count of rape, which was said to have been a digital rape, on the grounds that that count was not sufficiently particularised and that the verdict was unsafe and unsatisfactory.  Mr Copley, for the Crown, has very fairly conceded that the count was not properly particularised and that the conviction on it cannot stand.

Count 2, the count in question, alleged rape on a date unknown between the 26th day of May 2003 and the 26th day of December 2003 at Brisbane in the state of Queensland.  The complainant was the appellant's step-daughter and was 13 years at the time.  Her evidence was put before the jury by way of two statements and a pre-recording of evidence.  In the first of the statements, made on the 8th of December 2003, the complainant said that the appellant had started touching her vaginal area from the time she was about eight years old and in 2002 had started putting his finger into her vagina.  She gave a specific description of an occasion on which he did so when she was watching television, which seems to have been the subject of count 1.

As to what might have happened between May and December 2003, she said that over the last three months, while her mother was at work, her step-father had commenced coming into her bedroom.  She described what happened in general terms:

"My step-father comes into my room.  He normally pulls my pants down a little and then he starts touching my vagina and sticking his fingers into my vagina.  He also now puts his hands up my shirt and touches my breasts.  He tickles my breasts."

She went on to say that a couple of weeks earlier, she had confronted her step-father about what he was doing:

"I was in my bedroom when I told him this.  He had stopped what he was doing and I was crying when I told him and that I didn't want him to do this to me anymore."

She did not expand on what it was that he had stopped doing.

The complainant's later statement and pre-recorded evidence did not advance on the allegation of digital rape.  Perhaps unfortunately, her distress during the pre-recording of evidence seems to have precluded any exploration of the matters referred to in her statement which might otherwise have occurred.  Two of her school friends gave evidence of complaints and her mother gave evidence of a background nature but none of it bore directly on the rape allegation.  The appellant gave evidence denying any form of sexual assault.

The Prosecutor did not identify any particular act of rape on which count 2 was based in his opening or closing addresses, and it is difficult to see how he could have done so on the evidence as it stood.  The learned trial Judge explained the elements of rape to the jury and told them that the allegation was that the defendant came into the complainant's bedroom and placed his hand within her clothing and inserted his finger in her vagina.

The prosecution case on count 2 clearly suffered from latent ambiguity and unfairness of the kind identified in S v The Queen (1989) 168 CLR 266. No particular occasion was identified and the jury was not asked to consider the appellant's guilt of any specific act. It was impossible for the appellant to know with any certainty what charge he had to meet because the count was capable of referring to any one of the unspecified number of occasions in which the complainant alleged the appellant had come into her room over the three months since her mother had working at night. Consequently, he was put in a position of having to defend himself in respect of each respective occasion of offending and was denied the opportunity to test the complainant's credit or to offer anything by way of alibi. It seems probable that the jury convicted either on the basis of propensity or speculation as to what the complainant's statement might have implied. There was clearly a miscarriage of justice and the appeal against conviction on count 2 should be allowed.

The question then arises as to whether any new trial of that count should be ordered. Applying the test in Director of Public Prosecutions v Fowler (1984) 154 CLR 627, this is a case in which the evidence given at the trial on this count was not sufficiently cogent to justify conviction. It would not, therefore, be appropriate by ordering a new trial to give the prosecution an opportunity to supplement its case; and it seems doubtful in any event that it could do so.

I would, therefore, set aside the verdict of guilty on count 2 and substitute a judgment and verdict of acquittal.

The verdicts on the remaining counts would stand as would the sentences on them including, of course, the sentence of three years' imprisonment imposed on count 4, the maintaining count.

WILLIAMS JA:  I agree.

KEANE JA:  I agree.

WILLIAMS JA:  The order of the Court is that the conviction on count 2 is quashed and a verdict of acquittal on that count is entered.

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