R v BCP - [2013] QCA 383

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCP [2013] QCA 383

PARTIES:

R
v
BCP
(appellant/applicant)

FILE NO/S:

CA No 211 of 2012
DC No 8 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Charleville

DELIVERED ON:

Order delivered ex tempore on 21 August 2013
Further orders and reasons delivered on 17 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2013

JUDGES:

Margaret McMurdo P, Gotterson JA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 21 August 2013:

Application for leave to appeal against sentence is refused.

Further orders delivered on 17 December 2013:

1. Application to adduce further evidence refused.

2. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the appellant was convicted of one count of maintaining a sexual relationship with a child, three counts of rape, one count of indecent treatment of a child under 16 who is a lineal descendent under care, and one count of common assault – where the complainant for all counts was the appellant’s biological daughter – where the appellant contended that inconsistencies in the complainant’s account of what happened caused her to be an unreliable witness, that there was an “existing relationship” between the eldest daughter of the appellant and a member of the jury, that the s 93A interviews with complaint witnesses had not been video recorded, and that there was repetitive use of leading questions and repeated questions in the s 93A interviews all amounting to a miscarriage of justice – whether or not any of these contentions amounted to a miscarriage of justice – whether the verdict was unsafe or unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant contended that the complainant’s testimonies were unreliable and uncorroborated – where evidence was given at trial by five complaint witnesses, the complainant’s younger sister and a doctor, which was materially consistent with the complainant’s account of events – whether the verdict was unsafe or unsatisfactory having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL – MATERIALITY AND COGENCY – where the appellant sought to admit new evidence which was either irrelevant or evidence that was available at trial – where the test for non-fresh evidence requires that the verdict of guilty could not stand if the evidence was admitted – whether this evidence considered with both the evidence at trial raised such a doubt about guilt that the conviction could not be allowed to stand

Criminal Code 1899 (Qld), s 210(1)(4), s 229B, s 339(1), s 349, s 668E(1)

M v The…

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.

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Details

Case: [2013] QCA 383
Decision Date: 21 August 2013

CaseChat Overview and Summary

The case of R v BCP involved an appellant convicted of multiple serious offences against his biological daughter, including maintaining a sexual relationship with a child, multiple counts of rape, indecent treatment of a child, and common assault. The appellant appealed against his conviction and sentence, arguing that there was a miscarriage of justice due to several factors, including inconsistencies in the complainant's testimony, an alleged relationship between a jury member and the appellant's eldest daughter, the absence of video recordings of interviews conducted under section 93A, and repetitive use of leading questions in those interviews. The appeal also challenged the reliability and corroboration of the complainant's evidence.

The court was required to determine whether the appellant's contentions amounted to a miscarriage of justice, particularly whether the verdict was unsafe or unsatisfactory in light of the evidence. The court examined the reliability of the complainant's testimony against the backdrop of corroborative evidence provided by five other witnesses, the complainant’s younger sister, and a doctor, which was consistent with the complainant’s account. The court considered whether the inconsistencies and other issues raised by the appellant were significant enough to cast doubt on the reliability of the verdict.

The court concluded that the evidence presented at trial, which was materially consistent and corroborated the complainant's account, was sufficient to support the verdict. The inconsistencies and other issues raised by the appellant did not undermine the reliability of the verdict to the extent that it was considered unsafe or unsatisfactory. Additionally, the appellant's attempt to introduce new evidence was rejected as the evidence was either irrelevant or already available at the time of the trial. Consequently, the appeal was dismissed, and the application to adduce further evidence was refused.

The final orders included the refusal of the application for leave to appeal against the sentence and the dismissal of the appeal. The application to adduce further evidence was also denied, thereby upholding the original convictions.

Orders

Orders of the court

Delivered ex tempore on 21 August 2013:

Application for leave to appeal against sentence is refused.

Further orders delivered on 17 December 2013:

1. Application to adduce further evidence refused.

2. 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 BCP [2013] QCA 383
PARTIES:	R v BCP (appellant/applicant)
FILE NO/S:	CA No 211 of 2012 DC No 8 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Charleville
DELIVERED ON:	Order delivered ex tempore on 21 August 2013 Further orders and reasons delivered on 17 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2013
JUDGES:	Margaret McMurdo P, Gotterson JA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 21 August 2013: Application for leave to appeal against sentence is refused. Further orders delivered on 17 December 2013: 1. Application to adduce further evidence refused. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – where the appellant was convicted of one count of maintaining a sexual relationship with a child, three counts of rape, one count of indecent treatment of a child under 16 who is a lineal descendent under care, and one count of common assault – where the complainant for all counts was the appellant’s biological daughter – where the appellant contended that inconsistencies in the complainant’s account of what happened caused her to be an unreliable witness, that there was an “existing relationship” between the eldest daughter of the appellant and a member of the jury, that the s 93A interviews with complaint witnesses had not been video recorded, and that there was repetitive use of leading questions and repeated questions in the s 93A interviews all amounting to a miscarriage of justice – whether or not any of these contentions amounted to a miscarriage of justice – whether the verdict was unsafe or unsatisfactory CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant contended that the complainant’s testimonies were unreliable and uncorroborated – where evidence was given at trial by five complaint witnesses, the complainant’s younger sister and a doctor, which was materially consistent with the complainant’s account of events – whether the verdict was unsafe or unsatisfactory having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL – MATERIALITY AND COGENCY – where the appellant sought to admit new evidence which was either irrelevant or evidence that was available at trial – where the test for non-fresh evidence requires that the verdict of guilty could not stand if the evidence was admitted – whether this evidence considered with both the evidence at trial raised such a doubt about guilt that the conviction could not be allowed to stand Criminal Code 1899 (Qld), s 210(1)(4), s 229B, s 339(1), s 349, s 668E(1) M v The…