R v BBH

[2007] QCA 348

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBH [2007] QCA 348

PARTIES:

R
v
BBH
(appellant)

FILE NO/S:

CA No 123 of 2007
DC No 202 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 September 2007

JUDGES:

Keane and Holmes JJA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – where appellant convicted of one count of maintaining an indecent relationship with a child under 16, four counts of indecent treatment and four counts of sodomy – where appellant acquitted of three counts of indecent treatment – where complainant was appellant's daughter – whether evidence of complainant's brother was properly placed before the jury – whether adequate directions given to jury – whether Robinson warning necessary – whether acquittals rendered guilty verdicts unreasonable, unsafe and unsatisfactory

R v E [1999] QCA 58; CA No 370 of 1998, 5 March 1999, applied
Gilbert v The Queen (2000) 201 CLR 414, applied
R v Johnston (1998) 45 NSWLR 362, cited
Longman v The Queen (1989) 168 CLR 79, cited
R v Markuleski (2001) 52 NSWLR 82, applied
Robinson v The Queen (1999) 197 CLR 162, considered
R v Sakail [1993] 1 Qd R 312, applied

R v Kirkman (1987) 44 SASR 591, cited
Mackenzie v The Queen (1996) 190 CLR 348, applied

O'Leary v The Queen (1946) 73 CLR 566, applied

COUNSEL:

N M Cooke RFD QC, with A D Stobie, for the appellant
M R Byrne for the respondent

SOLICITORS:

Martinez Quadrio Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA:  On 17 May 2007, the appellant was convicted upon the verdict of a jury of one count of maintaining an unlawful sexual relationship with a child under 16 years of age who was his daughter and in his care, four counts of indecent treatment of a child under 16 years of age who was his daughter and in his care, and four counts of sodomy of his daughter.  He was found not guilty of three counts of indecent treatment.

1. On 18 May 2007, for each of the offences of which the appellant had been convicted, he was sentenced to 10 years imprisonment.

1. The appellant seeks to appeal against these convictions on a number of grounds which may be summarised as follows:

(a)        the learned trial judge erred in allowing evidence from the complainant's brother, W, to be placed before the jury;

(b)        the learned trial judge's direction to the jury in relation to the evidence of W was inadequate to avoid undue prejudice to the appellant;

(c)        the learned trial judge failed adequately to warn the jury of…