R v BCQ - [2013] QCA 388

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCQ [2013] QCA 388

PARTIES:

R
v
BCQ
(appellant/applicant)

FILE NO/S:

CA No 213 of 2013
DC No 3 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Bowen

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2013

JUDGES:

Holmes JA and McMeekin and Boddice JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal be allowed.1.

The convictions in respect of Counts 10, 11 and 13 be set aside and verdicts of acquittal entered in respect of each of those counts.2.

The verdicts of guilty in respect of Counts 1, 8 and 9 be set aside, and a new trial be ordered in respect of each of those counts.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of one count of maintaining an unlawful sexual relationship with circumstances of aggravation (Count 1), three counts of aggravated indecent assault (Counts 8, 10 and 11), one count of aggravated indecent treatment of a child (Count 9), and one count of rape (Count 13), and acquitted of four counts of aggravated indecent treatment of a child (Counts 2, 3, 5 and 7), one count of aggravated indecent assault (Count 4), and one count of attempted rape (Count 6) – where the appellant contends the verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal – where the respondent submits there was a logical and reasonable basis as the verdicts of not guilty on Counts 2-7 were in the context of the complainant’s evidence being less specific in respect of the dates of those offences – where the complainant’s evidence was no more specific as to the dates of Counts 10, 11 and 13 than Counts 2-7 – where findings of guilt on Counts 8 and 9 were open on the evidence – whether verdict unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – REVIEW OF EVIDENCE – where the complainant relied upon a pretext call which contained the appellant apologising for his conduct when the complainant was a “little girl” – where the appellant contended the apology related to consensual sexual conduct when the complainant was over 18 years of age – where the jury were directed that it was a question for them to determine what the telephone conversation meant and whether it supported the complainant’s account – where the appellant contends the trial Judge erred in failing to adequately direct the jury as to the use to be made of alleged admissions during the pretext call – where the appellant also contends the jury ought to have been directed as to the standard of proof when deciding whether the complainant’s evidence constituted an admission the appellant had…

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 BCQ

Details

AGLC: R v BCQ [2013] QCA 388
Case: [2013] QCA 388
Decision Date: 20 December 2013

CaseChat Overview and Summary

In this appeal, the respondent sought to challenge the verdicts of guilty on certain counts of sexual offences, arguing that they were unreasonable and inconsistent with the verdicts of acquittal on other counts. The appellant, who was convicted of maintaining an unlawful sexual relationship with circumstances of aggravation, three counts of aggravated indecent assault, one count of aggravated indecent treatment of a child, and one count of rape, contended that the verdicts were unreasonable. The respondent argued that there was a logical and reasonable basis for the verdicts, particularly regarding the complainant’s evidence being less specific about the dates of certain offences.

The court was required to determine whether the verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal, particularly given the complainant’s evidence was not more specific about the dates of the offences in Counts 10, 11, and 13 than those in Counts 2-7. Additionally, the court had to assess whether the jury had been adequately directed in relation to the use of alleged admissions during a pretext call, and whether the jury needed further direction regarding the standard of proof when deciding whether the complainant’s evidence constituted an admission of sexual interference when the complainant was a child.

The court found that the jury had not been adequately directed in relation to the use of the contents of the pretext call, and that this misdirection was a significant factor in the verdicts being unreasonable. The court noted that the jury needed clear direction on the standard of proof when considering whether the complainant’s evidence constituted an admission of sexual interference when the complainant was a child, which was not provided. Consequently, the court allowed the appeal, set aside the convictions in respect of Counts 10, 11, and 13, and ordered new trials for Counts 1, 8, and 9.

Orders

Orders of the court

The appeal be allowed.1.

The convictions in respect of Counts 10, 11 and 13 be set aside and verdicts of acquittal entered in respect of each of those counts.2.

The verdicts of guilty in respect of Counts 1, 8 and 9 be set aside, and a new trial be ordered in respect of each of those counts.3.

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 BCQ [2013] QCA 388
PARTIES:	R v BCQ (appellant/applicant)
FILE NO/S:	CA No 213 of 2013 DC No 3 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Bowen
DELIVERED ON:	20 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2013
JUDGES:	Holmes JA and McMeekin and Boddice JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal be allowed.1. The convictions in respect of Counts 10, 11 and 13 be set aside and verdicts of acquittal entered in respect of each of those counts.2. The verdicts of guilty in respect of Counts 1, 8 and 9 be set aside, and a new trial be ordered in respect of each of those counts.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of one count of maintaining an unlawful sexual relationship with circumstances of aggravation (Count 1), three counts of aggravated indecent assault (Counts 8, 10 and 11), one count of aggravated indecent treatment of a child (Count 9), and one count of rape (Count 13), and acquitted of four counts of aggravated indecent treatment of a child (Counts 2, 3, 5 and 7), one count of aggravated indecent assault (Count 4), and one count of attempted rape (Count 6) – where the appellant contends the verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal – where the respondent submits there was a logical and reasonable basis as the verdicts of not guilty on Counts 2-7 were in the context of the complainant’s evidence being less specific in respect of the dates of those offences – where the complainant’s evidence was no more specific as to the dates of Counts 10, 11 and 13 than Counts 2-7 – where findings of guilt on Counts 8 and 9 were open on the evidence – whether verdict unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – REVIEW OF EVIDENCE – where the complainant relied upon a pretext call which contained the appellant apologising for his conduct when the complainant was a “little girl” – where the appellant contended the apology related to consensual sexual conduct when the complainant was over 18 years of age – where the jury were directed that it was a question for them to determine what the telephone conversation meant and whether it supported the complainant’s account – where the appellant contends the trial Judge erred in failing to adequately direct the jury as to the use to be made of alleged admissions during the pretext call – where the appellant also contends the jury ought to have been directed as to the standard of proof when deciding whether the complainant’s evidence constituted an admission the appellant had…