R v BCB - [2011] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCB [2011] QCA 314

PARTIES:

R
v
BCB
(appellant)

FILE NO/S:

CA No 53 of 2011
DC No 510 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

8 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2011

JUDGES:

Margaret McMurdo P, Fraser and White JJA
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 – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of two counts of indecent treatment of a child under the age of 16 and one count of rape – where minor inconsistencies in the complainant’s evidence – where the appellant raised issue of complainant’s demeanour during s 93A Evidence Act 1977 (Qld) interview and requested Court to view the video recording – whether jury’s verdicts were unreasonable or insupportable on the whole of the evidence

Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Code 1899 (Qld), s 210(1)(a) , s 249, s 668E
Evidence Act 1977 (Qld), s 93

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v PAH[2008] QCA 265, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
SKA v The Queen (2011) 85 ALJR 571; (2011) 276 ALR 423; [2011] HCA 13, considered

COUNSEL:

C Heaton SC for the appellant
V A Loury for the respondent

SOLICITORS:

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

MARGARET McMURDO P: I agree with White JA's reasons for dismissing this appeal against conviction.

FRASER JA: I agree with the reasons for judgment of White JA and the order proposed by her Honour.

WHITE JA: After a trial, the appellant was convicted of two counts of indecent treatment of a child under the age of 16 (s 210(1)(a) of the Criminal Code) and one count of rape (s 349 of the Criminal Code) on 15 March 2011. He was sentenced the following day to seven years imprisonment for the rape and three years imprisonment on each of the indecent treatment counts to be served concurrently. He appeals against his convictions on the ground that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence.[1] Such a challenge requires this Court to decide whether, on the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged.[2]
[1]Criminal Code,…

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 BCB

Details

AGLC: R v BCB [2011] QCA 314
Case: [2011] QCA 314
Decision Date: 8 November 2011

CaseChat Overview and Summary

In the case of R v BCB, the appellant, BCB, appealed against his conviction for two counts of indecent treatment of a child under the age of 16 and one count of rape. The appeal was heard in the Queensland Court of Appeal, where BCB contended that the verdicts were unreasonable or insupportable having regard to the evidence presented during the trial. BCB submitted that there were minor inconsistencies in the complainant's evidence and that her demeanour during a s 93A interview should have been considered by the jury. The Court was requested to view the video recording of the interview to assess whether the jury's verdicts were unreasonable or insupportable on the whole of the evidence.

The legal issues before the Court of Appeal revolved around the assessment of the reliability and credibility of the complainant's evidence, the significance of any inconsistencies in her testimony, and the impact of her demeanour during the s 93A interview on the jury's verdicts. The Court had to consider whether the jury's verdicts were unreasonable or insupportable when all the evidence was taken into account, including the video recording of the complainant's interview. The Court also needed to determine if the appellant's arguments regarding the inconsistencies and demeanour were sufficient to warrant a new trial.

The Court of Appeal found that the jury had properly considered all the evidence, including the inconsistencies in the complainant's evidence and her demeanour during the s 93A interview. The Court held that the jury was entitled to form the view that the complainant's evidence was reliable and credible, and that the verdicts were not unreasonable or insupportable. The Court concluded that the appellant had not demonstrated that the jury's verdicts were unsafe and unsatisfactory, and therefore dismissed the appeal.

No orders were made as the appeal was dismissed. The appellant's conviction for two counts of indecent treatment of a child under the age of 16 and one count of rape was upheld.

Orders

Orders of the court

Appeal dismissed.

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.

CITATION:	R v BCB [2011] QCA 314
PARTIES:	R v BCB (appellant)
FILE NO/S:	CA No 53 of 2011 DC No 510 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	8 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2011
JUDGES:	Margaret McMurdo P, Fraser and White JJA 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 – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of two counts of indecent treatment of a child under the age of 16 and one count of rape – where minor inconsistencies in the complainant’s evidence – where the appellant raised issue of complainant’s demeanour during s 93A Evidence Act 1977 (Qld) interview and requested Court to view the video recording – whether jury’s verdicts were unreasonable or insupportable on the whole of the evidence Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Code 1899 (Qld), s 210(1)(a) , s 249, s 668E Evidence Act 1977 (Qld), s 93 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v PAH[2008] QCA 265, cited Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited SKA v The Queen (2011) 85 ALJR 571; (2011) 276 ALR 423; [2011] HCA 13, considered
COUNSEL:	C Heaton SC for the appellant V A Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent