R v BCE - [2012] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCE [2012] QCA 58

PARTIES:

R
v
BCE
(appellant)

FILE NO/S:

CA No 323 of 2011
DC No of 130 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

20 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2012

JUDGES:

Muir, Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted following a trial of one count of unlawfully and indecently dealing with a girl under the age of 14 but was acquitted of two counts of rape and four additional counts of indecent dealing – whether the variegated evidence was able to sustain the differing verdicts – whether the verdict is unreasonable because of inconsistency with the acquittals on the other six counts

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v CX[2006] QCA 409, cited
R v SBL[2009] QCA 130, cited
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
R v Stone [1955] Crim LR 120, cited

COUNSEL:

A J Glynn SC for the appellant
G P Cash for the respondent

SOLICITORS:

Robertson O’Gorman for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the appeal should be dismissed for the reasons given by Chesterman JA.

FRASER JA: I have had the advantage of reading the reasons for judgment of Chesterman JA. I agree with those reasons and with the order proposed by his Honour.

CHESTERMAN JA: On 17 November 2011 the appellant was convicted, after a three day trial in the District Court at Mackay, of one count of unlawfully and indecently dealing with a girl under the age of 14, his stepdaughter. The indictment contained in all nine counts: five of indecent dealing and four of rape. Two of those, counts eight and nine, were withdrawn from the jury when the trial judge ruled there was insufficient evidence to support them. The appellant was acquitted of the remaining four counts of indecent dealing and the two rape counts.

The complainant stepdaughter (“C”) was born on 19 December 1971. The offences were alleged to have been committed between 31 October 1979 and 26 December 1985 when C was between the ages of 7 and 14. The oldest of them, count one, of which the appellant was convicted, was alleged to have occurred between 31 October 1979 and 1 December 1979.

The offence the subject of counts one, two and three in the indictment were said to have occurred at Koumala, a hamlet on the outskirts of Mackay, where the appellant and his family lived before moving to B Road Mackay in 1981. When C gave evidence the offences alleged…

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 BCE

Details

AGLC: R v BCE [2012] QCA 58
Case: [2012] QCA 58
Decision Date: 20 March 2012

CaseChat Overview and Summary

The appeal in R v BCE was heard in the High Court of Australia. The appellant, who had been convicted of one count of unlawfully and indecently dealing with a girl under the age of 14, challenged the conviction on the grounds that it was inconsistent with the acquittals on other charges. The respondent, the Crown, defended the conviction.

The central legal issue before the court was whether the evidence presented during the trial could rationally support the inconsistent verdicts, where the appellant was found guilty of one count of indecent dealing but acquitted on six other charges, including two counts of rape. The court had to assess whether the acquittals rendered the conviction unreasonable due to inconsistency.

In its judgment, the court examined the nature of the evidence and the verdicts rendered. It determined that the jury was entitled to accept the evidence as to the lesser offence while rejecting it as to the more serious charges. The court held that the inconsistency in the verdicts did not render the conviction unreasonable. The evidence was deemed sufficient to support the differing verdicts, and the conviction was thus upheld.

The final orders of the court were that the appeal against the conviction was dismissed, and the original conviction was maintained. The court found no grounds to set aside the conviction on the basis of inconsistency with the acquittals on the other charges.

Orders

Orders of the court

Appeal against conviction dismissed.

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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CITATION:	R v BCE [2012] QCA 58
PARTIES:	R v BCE (appellant)
FILE NO/S:	CA No 323 of 2011 DC No of 130 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	20 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2012
JUDGES:	Muir, Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted following a trial of one count of unlawfully and indecently dealing with a girl under the age of 14 but was acquitted of two counts of rape and four additional counts of indecent dealing – whether the variegated evidence was able to sustain the differing verdicts – whether the verdict is unreasonable because of inconsistency with the acquittals on the other six counts MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v CX[2006] QCA 409, cited R v SBL[2009] QCA 130, cited R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited R v Stone [1955] Crim LR 120, cited
COUNSEL:	A J Glynn SC for the appellant G P Cash for the respondent
SOLICITORS:	Robertson O’Gorman for the appellant Director of Public Prosecutions (Queensland) for the respondent