R v BCU

[2014] QCA 292

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCU [2014] QCA 292

PARTIES:

R
v
BCU
(appellant)

FILE NO/S:

CA No 132 of 2014
DC No 241 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2014

JUDGES:

Holmes and Fraser JJA and Henry J
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 – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was found guilty by a jury of three counts of rape and three counts of aggravated indecent treatment of a child – where the complainant gave evidence of the appellant wearing a rubber ring when committing the offences – where evidence of similar rings being found on the appellant’s bedside table six years later was given – where the appellant conceded the evidence was admissible but argued it should have been excluded because of its slight probative value and substantial prejudicial effect – whether the evidence was prejudicial – where at trial defence counsel did not seek to have the evidence excluded – whether, if the trial judge had been asked to exclude the evidence, the trial judge would have been obliged to do so

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty by a jury of three counts of rape and three counts of aggravated indecent treatment of a child – where the appellant argued the complainant’s evidence contained an inconsistency and a mistake that rendered it unreliable – where the appellant argued the circumstances of the offences and the limited nature of the preliminary complaint, if the offences had actually occurred, were inherently implausible and detracted from the complainant’s credibility – whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of each offence

Alexander v The Queen (1981) 145 CLR 395; [1981] HCA 17, cited
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Gallagher [1998] 2 VR 671, cited

COUNSEL:

M J Copley QC for the appellant
D C Boyle for the respondent

SOLICITORS:

McKays Solicitors acting as Town Agent for Crosby Brosnan & Creen Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  I agree with the reasons of Fraser JA and the order he proposes.

1. FRASER JA:  The appellant was found guilty by a jury of three counts of rape and three counts of aggravated indecent treatment of a child.  The grounds of the…