R v BBS

Case [2009] QCA 205 21 July 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BBS [2009] QCA 205

PARTIES:

R
v
BBS
(appellant)

FILE NO/S:

CA No 271 of 2007
DC No 346 of 2007
DC No 166 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2009

JUDGES:

Chief Justice, Keane JA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   The appeal against conviction be dismissed

2.   The declaration as to pre-sentence custody made by the primary Judge be set aside, and that there be a declaration that the period of pre-sentence custody from 28 August 2007 to 25 September 2007, namely 28 days, is time already served under the sentences imposed for the four offences of unlawful and indecent dealing and the offence of maintaining an unlawful relationship.

3.   The application for leave to appeal against sentence should otherwise be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where jury given directions on corroboration – where no direction was sought or given as to how a montage image of one complainant’s face superimposed on a nude body with a picture of a penis could be used by the jury – where certain directions were not given in relation to the appellant’s record of interview – where a search warrant was issued enabling the seizure of the appellant’s computer – whether a miscarriage of justice occurred due to the inadequate, erroneous or absent directions of the trial judge

CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where convicted at trial of 1 count maintaining an unlawful sexual relationship, 4 counts indecent treatment of children under the age of 12, 3 counts possession of objectionable computer game, and 1 count making an objectionable computer game – where the appellant placed his penis in each of the complainants’ mouths – where the appellant’s computer was seized and found to contain child pornography and offensive computer games – whether the sentence imposed by the trial judge was manifestly excessive

Police Powers and Responsibilities Act 2000 (Qld) s 69, s 74(1)(b), s 74(1)(h)

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, considered
Dobbs v Ward [2003] 1 Qd R 158; [2002] QSC 109, considered
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
R v BBQ[2009] QCA 166, distinguished
R v D [1996] 1 Qd R 363; [1995] QCA 329, considered
R v Kerim [1988] 1 Qd R 426, considered
R v TS[2008] QCA 370, considered

COUNSEL:

P E Smith with A M Hoare for the appellant
G Cummings for the respondent

SOLICITORS:

Suthers Lawyers for the appellant
Director of Public…

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 BBS

Details

AGLC: R v BBS [2009] QCA 205
Case: [2009] QCA 205
Decision Date: 21 July 2009

CaseChat Overview and Summary

The appellant, BBS, appealed against both his conviction and sentence. The appeal against conviction argued that the trial judge failed to provide adequate directions to the jury regarding the use of certain evidence, including a montage image of one complainant’s face superimposed on a nude body with a picture of a penis, and a record of the appellant’s interview. The appellant contended that these errors amounted to a miscarriage of justice. Additionally, the appeal against sentence argued that the sentence was manifestly excessive.

The court considered whether the errors made by the trial judge were so significant that they constituted a miscarriage of justice. The court examined the jury directions and concluded that while there were errors, they were not of such a nature that they undermined the overall fairness of the trial. The court found that the errors did not amount to a miscarriage of justice and dismissed the appeal against conviction. The court also found that the sentence was not manifestly excessive and denied the appeal against sentence. However, the court did order that the period of pre-sentence custody from 28 August 2007 to 25 September 2007 should be recognised as time already served under the sentences imposed for the four offences of unlawful and indecent dealing and the offence of maintaining an unlawful relationship.

In summary, the appeal against conviction was dismissed, and the appeal against sentence was also dismissed, except for the order recognising the pre-sentence custody as time already served. The application for leave to appeal against sentence was otherwise refused.

Orders

Orders of the court

1. The appeal against conviction be dismissed

2. The declaration as to pre-sentence custody made by the primary Judge be set aside, and that there be a declaration that the period of pre-sentence custody from 28 August 2007 to 25 September 2007, namely 28 days, is time already served under the sentences imposed for the four offences of unlawful and indecent dealing and the offence of maintaining an unlawful relationship.

3. The application for leave to appeal against sentence should otherwise be refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v BBS [2009] QCA 205

Most Recent Citation

R v RAL [2012] QCA 34

Cases citing this decision · 4 of 4 shown

AKS Investments Pty Ltd v Queensland Police Service; AKS Investments Pty Ltd v Queensland Police Service
[2018] QSC 4 Para 5

…is a “state of conjecture or surmise where proof is lacking”.[83] [83] R v Dobbs v Ward & Anor [2002] QSC 109, [19]. And see R v BBS [2009] QCA 205, [44]. Consideration…
R v Lewis-Grant
[2015] QCA 252 Para 7

…Bull ,[19] R v M ,[20] R v BBS ,[21] and R v D .[22] The Crown added R v Choomwantha .[23] [19][2012] QCA 74. ( Bull ) [20][2003] QCA 443. ( M ) [21][2009] QCA 205. ( BBS ) [22][2003] QCA 88. ( D ) [23][2014] QCA 115. ( Choomwantha )…
R v Van Der Zyden
[2012] QCA 89 Para 1

…rname was unknown to the appellant, the loss of the ability to test the evidence of TE, and the possible loss of military records. [22] R v BBS [2009] QCA 205 at [20]-[21].…
R v RAL
[2012] QCA 34 Para 1

…rse effects on the complainant. That sentence is of limited value since it was imposed after a trial and infected with other criminal conduct. [9][2009] QCA 205.…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

R v BBQ
[2009] QCA 166 Para 1

…Counsel for the appellant submitted a particular direction was required, in light of R v BBQ [2009] QCA 166, paras 57, 58, 61, 65. In BBQ , the accused admitted to discreditable conduct. Here, the relevant material went no further than to establish what Mr Cummings fairly described as the appellant’s “mindset”. B…
R v Myers
[2009] QCA 14 Para 1

…The cases referred to, for the respondent, were R v Myers [2009] QCA 14 (single complainant, and older – 12-14 years), R v MAM [2005] QCA 323 (where the complainant girls were, again, substantially older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106,…
R v TS
[2008] QCA 370 Para 1

…. The Judge was probably doing no more than saying the three particularized specified occasions were not isolated, which was relevant. See R v TS [2008] QCA 370, para 33, and R v D [1996] 1 Qd R 363, 403. The Judge noted that each of the complainants was six years of age at the time of the offending. He noted tha…
R v HAN
[2008] QCA 106 Para 1

…the complainant girls were, again, substantially older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been ap…
HML v The Queen
[2008] HCA 16

…considered Dobbs v Ward [2003] 1 Qd R 158; [2002] QSC 109, considered HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited R v BBQ [2009] QCA 166, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v Kerim [1988] 1 Qd R 426, considered R v TS [2008] QCA 370, considered COUNSEL: P E Smith wit…
R v GY
[2007] QCA 103 Para 1

…ere, again, substantially older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been appropriate, allowing for…
R v Mam
[2005] QCA 323 Para 1

…The cases referred to, for the respondent, were R v Myers [2009] QCA 14 (single complainant, and older – 12-14 years), R v MAM [2005] QCA 323 (where the complainant girls were, again, substantially older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R…
R v BAT
[2005] QCA 82 Para 1

…R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been appropriate, allowing for the absence of rape or carnal knowledge.…
R v MAH
[2005] QCA 13 Para 1

…y older, 12-13 years) and R v T (2000) 113 A Crim R 439; and for the applicant, in addition, R v HAN [2008] QCA 106, R v GY [2007] QCA 103, R v MAH [2005] QCA 13 and R v BAT [2005] QCA 82. Mr Hoare submitted that a sentence of four and a half years would have been appropriate, allowing for the absence of rape or…
Dobbs v Ward
[2002] QSC 109 Para 1

…As stated in Dobbs v Ward & Anor [2002] QSC 109 at para 19:…
R v D
[1995] QCA 329

…n (2008) 235 CLR 334; [2008] HCA 16, cited R v BBQ [2009] QCA 166, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v Kerim [1988] 1 Qd R 426, considered R v TS [2008] QCA 370, considered COUNSEL: P E Smith with A M Hoare for the appellant G Cummings for the respondent SOLICITORS: Suthers Lawye…
Bunning v Cross
[1978] HCA 22

…owers and Responsibilities Act 2000 (Qld) s 69, s 74(1)(b), s 74(1)(h) Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, considered Dobbs v Ward [2003] 1 Qd R 158; [2002] QSC 109, considered HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited R v BBQ [2009] QCA 166, distinguished R v D [1996] 1 Qd R 363; [1…

Legislation cited in this decision · 1

Police Powers and Responsibilities Act 2000 (Qld)
69 2 mentions (from Para 1)

CITATION:	R v BBS [2009] QCA 205
PARTIES:	R v BBS (appellant)
FILE NO/S:	CA No 271 of 2007 DC No 346 of 2007 DC No 166 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	21 July 2009
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2009
JUDGES:	Chief Justice, Keane JA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The appeal against conviction be dismissed 2. The declaration as to pre-sentence custody made by the primary Judge be set aside, and that there be a declaration that the period of pre-sentence custody from 28 August 2007 to 25 September 2007, namely 28 days, is time already served under the sentences imposed for the four offences of unlawful and indecent dealing and the offence of maintaining an unlawful relationship. 3. The application for leave to appeal against sentence should otherwise be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where jury given directions on corroboration – where no direction was sought or given as to how a montage image of one complainant’s face superimposed on a nude body with a picture of a penis could be used by the jury – where certain directions were not given in relation to the appellant’s record of interview – where a search warrant was issued enabling the seizure of the appellant’s computer – whether a miscarriage of justice occurred due to the inadequate, erroneous or absent directions of the trial judge CRIMINAL LAW – APPEAL AND NEW TRIAL –APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where convicted at trial of 1 count maintaining an unlawful sexual relationship, 4 counts indecent treatment of children under the age of 12, 3 counts possession of objectionable computer game, and 1 count making an objectionable computer game – where the appellant placed his penis in each of the complainants’ mouths – where the appellant’s computer was seized and found to contain child pornography and offensive computer games – whether the sentence imposed by the trial judge was manifestly excessive Police Powers and Responsibilities Act 2000 (Qld) s 69, s 74(1)(b), s 74(1)(h) Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, considered Dobbs v Ward [2003] 1 Qd R 158; [2002] QSC 109, considered HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited R v BBQ[2009] QCA 166, distinguished R v D [1996] 1 Qd R 363; [1995] QCA 329, considered R v Kerim [1988] 1 Qd R 426, considered R v TS[2008] QCA 370, considered
COUNSEL:	P E Smith with A M Hoare for the appellant G Cummings for the respondent
SOLICITORS:	Suthers Lawyers for the appellant Director of Public…