R v BCL

Case [2013] QCA 108 8 February 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BCL [2013] QCA 108

PARTIES:

R
v
BCL
(appellant)

FILE NO/S:

CA No 217 of 2012
DC No 97 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

Orders delivered ex tempore 8 February 2013
Reasons and further order delivered 14 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2013

JUDGES:

Margaret McMurdo P and Fraser JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the further order made

ORDERS:

Delivered ex tempore 8 February 2013

Appeal allowed.1.

The verdicts of guilty in respect of counts 3 to 6 are set aside.2.

The Court reserves its decision as to what further orders will be made and the reasons for those orders and any further orders.3.

Delivered 14 May 2013

A retrial is ordered on counts 3 to 6.1.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was charged with five counts of rape and one count of sexual assault – where the appellant was convicted of three counts of rape and the sexual assault and acquitted on two counts of rape – where the complainant was declared a special witness under s 21A Evidence Act 1977 (Qld) and was consequently also an affected child witness – where the presiding judge at the pre-record hearing ordered under s 21A(2)(d) that a support person sit with the complainant whilst she gave evidence – where the primary judge erred in failing to direct the jury in accordance with the mandatory requirements of s 21A(8) and s 21AW(2) about the presence of a support person – whether miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the Court ordered that the verdicts of guilty on counts 3 to 6 be set aside by reason of a miscarriage of justice arising from the primary judge's failure to direct the jury in accordance with s 21A(8) and s 21AW(2) about the presence of a support person – where the appellant contends that the verdicts of acquittal on counts 3 to 6 are unreasonable and cannot be supported having regard to the evidence – where the appellant contends that the verdicts of guilty on counts 3 to 6 are inconsistent with the verdicts of acquittal on counts 1 and 2 – where the resolution of this ground determines whether verdicts of acquittal will be entered or a re-trial ordered on counts 3 to 6 – whether verdicts unreasonable and cannot be supported by the evidence – whether verdicts inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant contended that the primary judge erred in admitting evidence of the complainant's behavioural change – where the appellant contended that the primary…

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 BCL

Details

AGLC: R v BCL [2013] QCA 108
Case: [2013] QCA 108
Decision Date: 8 February 2013

CaseChat Overview and Summary

In the matter of R v BCL, the appellant was convicted of three counts of rape and one count of sexual assault, while being acquitted on two counts of rape. The appellant appealed against his convictions, arguing that there was a miscarriage of justice due to the primary judge's failure to direct the jury properly concerning the presence of a support person for the complainant, who was both a special witness and an affected child witness. The appellant also argued that the verdicts of acquittal on counts 1 and 2 were unreasonable and inconsistent with the guilty verdicts on counts 3 to 6.

The court had to determine whether the primary judge's failure to direct the jury correctly about the presence of the support person amounted to a miscarriage of justice, and if the verdicts of acquittal were unreasonable or could not be supported by the evidence. Additionally, the court needed to examine whether the primary judge erred in admitting evidence of the complainant's behavioural change, failing to warn the jury about delay and the danger of convicting based solely on the complainant's uncorroborated testimony, and not identifying matters affecting the reliability of the complainant's evidence.

The court found that the primary judge's failure to direct the jury correctly about the presence of the support person indeed amounted to a miscarriage of justice. The court set aside the verdicts of guilty on counts 3 to 6 due to this error. However, the court held that the verdicts of acquittal on counts 1 and 2 were not unreasonable or unsupported by the evidence. The court also dismissed the appellant's other grounds of appeal. Consequently, the court ordered a retrial on counts 3 to 6.

Orders

Orders of the court

Delivered ex tempore 8 February 2013

Appeal allowed.1.

The verdicts of guilty in respect of counts 3 to 6 are set aside.2.

The Court reserves its decision as to what further orders will be made and the reasons for those orders and any further orders.3.

Delivered 14 May 2013

A retrial is ordered on counts 3 to 6.1.

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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Citations

R v BCL [2013] QCA 108

Most Recent Citation

R v Little [2013] QCA 223

Cases Citing This Decision

OKS v The State of Western Australia [2018] WASCA 48
Citation 1 (Para 4)

…rake [2013] QCA 222; (2013) 233 A Crim R 588 [2], [30]; R v DM [2006] QCA 79 [26]; R v Michael [2008] QCA 33; (2008) 181 A Crim R 490 [38]; R v BCL [2013] QCA 108 [8].…
R v Coss [2015] QCA 33
Citation 2 (Para 17)

…e .[16] That provision will require the convictions to be set aside unless the proviso to it is invoked. [15]Per McMurdo J in R v DM at [70]; R v BCL [2013] QCA 108 at [10]. [16]Per Williams JA in R v DM at [3]. The proviso in s 668E(2)…
R v RAQ [2014] QCA 261
Citation 3 (Para 1)

…are given”.[19] [18] R v AAR [2014] QCA 20 at [24], citing R v GAQ [2013] QCA 309, R v DM [2006] QCA 79, R v Michael [2008] QCA 33 and R v BCL [2013] QCA 108. [19] R v Doolan [2014] QCA 246 at [34].…
R v Carter [2014] QCA 120
Citation 4 (Para 1)

…013] QCA 289, [1] and [38]. [14][2013] QCA 283, [28]. [15][2013] QCA 276, [37]. [16][2013] QCA 251, [21]-[23]. [17][2013] QCA 222, [34]-[37]. [18][2013] QCA 108, [10].…
R v AAR [2014] QCA 20
Citation 5 (Para 1)

…miscarriage of justice.[4] [4] R v GAQ [2013] QCA 309 at [10], applying R v DM [2006] QCA 79 at [26], R v Michael [2008] QCA 33 at [38], and R v BCL [2013] QCA 108 at [8]; s 668E(1A) Criminal Code 1899 (Qld).…
R v Amber [2013] QCA 360
Citation 6

…ce has resulted in an appeal being dismissed on the basis of the proviso in s 668E(1A). Compare R v WAT [2013] QCA 251 especially [23], R v BCL [2013] QCA 108, R v Drake [2013] QCA 222, R v Little [2013] QCA 223 and R v Bisht [2013] QCA 238. The case of R v FAD [2013] QCA 334 upon which the respondent places reli…
R v FAD [2013] QCA 334
Citation 7 (Para 38)

…ble to conclude for itself upon its review of the record that there has been no substantial miscarriage of justice [ R v Michael at [38]; R v BCL [2013] QCA 108 at [8]].”…
R v TAC [2013] QCA 283
Citation 8 (Para 1)

…essary to consider the remaining ground, as to the adequacy of the trial judge’s direction on the dangers of convicting on H’s evidence alone. [2][2013] QCA 108. [3]At [8].…
R v SCB [2013] QCA 276
Citation 9 (Para 1)

…peal to the extent of setting aside the convictions, while reserving its reasons and further orders. [1] R v Michael (2008) 181 A Crim R 490; R v BCL [2013] QCA 108; R v Little [2013] QCA 223; R v Drake [2013] QCA 222; and R v Bisht [2013] QCA 238.…
R v Wells [2013] QCA 289
Citation 10 (Para 1)

…ch the court could conclude that no substantial miscarriage of justice had resulted from that error. [5] R v Michael (2008) 181 A Crim R 490; R v BCL [2013] QCA 108; R v Little [2013] QCA 223; R v Drake [2013] QCA 222; and R v Bisht [2013] QCA 238.…
R v WAT [2013] QCA 251
Citation 11

…atory warning Evidence Act 1977 (Qld), s 21A(2), s 21AV, s 21AW R v BCL [2013] QCA 108, cited R v Bisht [2013] QCA 238, cited R v Drake [2013] QCA 222, cited R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, considered R v Little [2013] QCA 223, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, considered COU…
R v Bisht [2013] QCA 238
Citation 12 (Para 1)

…al miscarriage of justice. See R v DM ;[30] R v Michael ;[31] R v BCL [32] and R v Little .[33] [30][2006] QCA 79, [26]. [31][2008] QCA 33, [38]. [32][2013] QCA 108, [8]. [33][2013] QCA 223, [24]…
R v Drake [2013] QCA 222
Citation 13 (Para 1)

…has been no substantial miscarriage of justice. See R v DM ;[1] R v Michael ;[2] R v BCL .[3] [1][2006] QCA 79, [26]. [2][2008] QCA 33, [38]. [3][2013] QCA 108, [8].…
R v GAQ [2013] QCA 309
Citation 14 (Para 1)

…ecord that there has been no substantial miscarriage of justice.[10] [8][2006] QCA 79, [26]. [9][2008] QCA 33, [38]. [10] R v Michael , [38]; R v BCL [2013] QCA 108, [8].…
R v Horvath [2013] QCA 196
Citation 15 (Para 1)

…, there can be no basis for the application of the proviso in this “word against word” case. See R v Hellwig [2007] 1 Qd R 17 para 13 and R v BCL [2013] QCA 108.…
R v Little [2013] QCA 223
Citation 16 (Para 1)

…quire whether, upon its review the whole of the record, there has been a miscarriage of justice: Weiss v The Queen .[13] [11][2008] QCA 33, [38]. [12][2013] QCA 108, [8]. [13](2005) 224 CLR 300, 317 [41], [44].…

See all citing cases →

Cases Cited

R v Williams [2008] QCA 411
Citation 1 (Para 1)

…ionship between the distressed condition and the alleged offence is tenuous or remote, the trial judge should withdraw the evidence from the jury. [7][2008] QCA 411, [37]-[39].…
R v Michael [2008] QCA 33
Citation 2 (Para 1)

…this Court is able to conclude for itself upon its review of the record that there has been no miscarriage of justice.[3] [1][2006] QCA 79, [26]. [2][2008] QCA 33. [3]Above, [38].…
R v Tichowitsch [2006] QCA 569
Citation 3

…d R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, considered R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited R v Williams [2010] 1 Qd R 276; [2008] QCA 411, considered COUNSEL: K Prskalo for the appellant M R Byrne SC for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of P…
R v Hellwig [2006] QCA 179
Citation 4 (Para 1)

…justice has arisen from the omission to give the warning under either s 21A(8) or s 21AW as to the presence of the support person. [4]See R v Hellwig [2006] QCA 179, [38].…
R v DM [2006] QCA 79
Citation 5 (Para 1)

…e trial being irregular, this Court is able to conclude for itself upon its review of the record that there has been no miscarriage of justice.[3] [1][2006] QCA 79, [26]. [2][2008] QCA 33. [3]Above, [38].…
Longman v The Queen [1989] HCA 60
Citation 6

…vidence Act 1977 (Qld), s 21A, s 21AV, s 21AW, s 93A, s 668E Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered R v DM [2006] QCA 79, considered R v Hellwig [2007] 1 Qd R 17; [2006] QCA 179, cited R v Michael (2008) 181 A Crim R 490; [2008] QCA 33, considered R v Tichowitsch [2007] 2 Qd R 462; [200…

Legislation Cited

Evidence Act 1977 (Qld) 21A
3 mentions

CITATION:	R v BCL [2013] QCA 108
PARTIES:	R v BCL (appellant)
FILE NO/S:	CA No 217 of 2012 DC No 97 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	Orders delivered ex tempore 8 February 2013 Reasons and further order delivered 14 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2013
JUDGES:	Margaret McMurdo P and Fraser JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the further order made
ORDERS:	Delivered ex tempore 8 February 2013 Appeal allowed.1. The verdicts of guilty in respect of counts 3 to 6 are set aside.2. The Court reserves its decision as to what further orders will be made and the reasons for those orders and any further orders.3. Delivered 14 May 2013 A retrial is ordered on counts 3 to 6.1.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was charged with five counts of rape and one count of sexual assault – where the appellant was convicted of three counts of rape and the sexual assault and acquitted on two counts of rape – where the complainant was declared a special witness under s 21A Evidence Act 1977 (Qld) and was consequently also an affected child witness – where the presiding judge at the pre-record hearing ordered under s 21A(2)(d) that a support person sit with the complainant whilst she gave evidence – where the primary judge erred in failing to direct the jury in accordance with the mandatory requirements of s 21A(8) and s 21AW(2) about the presence of a support person – whether miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the Court ordered that the verdicts of guilty on counts 3 to 6 be set aside by reason of a miscarriage of justice arising from the primary judge's failure to direct the jury in accordance with s 21A(8) and s 21AW(2) about the presence of a support person – where the appellant contends that the verdicts of acquittal on counts 3 to 6 are unreasonable and cannot be supported having regard to the evidence – where the appellant contends that the verdicts of guilty on counts 3 to 6 are inconsistent with the verdicts of acquittal on counts 1 and 2 – where the resolution of this ground determines whether verdicts of acquittal will be entered or a re-trial ordered on counts 3 to 6 – whether verdicts unreasonable and cannot be supported by the evidence – whether verdicts inconsistent CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant contended that the primary judge erred in admitting evidence of the complainant's behavioural change – where the appellant contended that the primary…