SUPREME COURT OF QUEENSLAND
CITATION:
R v BBP [2009] QCA 114
PARTIES:
R
v
BBP
(appellant)FILE NO/S:
CA No 250 of 2008
DC No 140 of 2008DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Maroochydore
DELIVERED ON:
5 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
3 April 2009
JUDGES:
McMurdo P, Keane and Chesterman JJA
Separate reasons for judgment of each member of the Court,each concurring as to the order made
ORDERS:
Appeal against conviction dismissed and application for leave to appeal sentence is refused
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where there were discrepancies between complainants and other witnesses evidence – where there were issues relating to timing and the complainant’s age when events occurred – whether it was reasonably open for jury to reach a guilty verdict given these inconsistencies
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where direction to jury relating to pre-recorded child evidence was required by s 21AW(2) of the Evidence Act 1977 (Qld) – where trial judge paraphrased requirements of section – whether trial judge erred in these directions
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to 8 years imprisonment for rape – whether this sentence was excessive given the specific circumstances of the offence and other comparable cases
Evidence Act 1977 (Qld), s 21AW(2), s 93A
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, followed
R v Casey, unreported, Court of Appeal, Qld, CA 262 of 1991, 3 March 1992, considered
R v Hellwig [2007] 32 Qd R 17; (2006) 161 A Crim R 489; [2006] QCA 179, considered
R v KU & Ors; ex parte A-G (Qld)[2008] QCA 154, consideredCOUNSEL:
The appellant appeared on his own behalf
M Copley SC for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: I agree with Chesterman JA's reasons for dismissing the appeal against conviction and refusing the application for leave to appeal against sentence.
KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Chesterman JA. I agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.
CHESTERMAN JA: After a three day trial the appellant was, on 24 September 2008, convicted of raping his niece, [the complainant] on an occasion between 25 July 2002 and 24 April 2004, and, on the same occasion, indecently dealing with her. He was sentenced to eight…
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- R v BBP [2009] QCA 114
- Case
- [2009] QCA 114
- Decision Date
CaseChat Overview and Summary
The court examined the discrepancies in the evidence, including inconsistencies between the complainants and other witnesses, as well as issues regarding timing and the complainant's age at the time of the alleged events. The court found that despite these inconsistencies, it was reasonably open for the jury to convict the appellant based on the evidence presented. The court also assessed the trial judge's directions to the jury regarding the pre-recorded child evidence, concluding that while the judge paraphrased the statutory requirements, the essence of the direction was correctly conveyed and did not constitute a misdirection. Finally, the court considered the sentence imposed and determined that it was not manifestly excessive in light of the specific circumstances of the offence and comparable cases.
The appeal against the conviction was dismissed as the court found the verdict to be reasonably open on the evidence. The application for leave to appeal the sentence was also refused, as the sentence was not found to be manifestly excessive. The court's final orders were that the appeal against the conviction be dismissed and the application for leave to appeal the sentence be refused.
Orders
Orders of the court
Appeal against conviction dismissed and application for leave to appeal sentence is refused
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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