R v BCZ - [2016] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCZ [2016] QCA 232

PARTIES:

R
v
BCZ
(appellant)

FILE NO/S:

CA No 74 of 2016
DC No 778 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 March 2016

DELIVERED ON:

13 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2016

JUDGES:

Philippides and Philip McMurdo JJA and Daubney 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 convicted of one count of indecent dealing with a child under 12 years and one count of rape – where, in a pre-trial hearing, a letter written by the complainant to her mother was ruled inadmissible as evidence of a preliminary complaint – where, in the course of cross-examination, the complainant answered “no” when asked if she had told anyone about each incidence of offending on the indictment – where upon re-examination, in the course of explaining why she had not told anyone of the offending, the complainant referred to the letter and her mother’s response to it – where the appellant contends that the complainant’s reference to the letter was inadmissible evidence of an earlier complaint – whether the complainant’s evidence about the letter was admissible

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where, at the pre-trial hearing, it was ruled that statements made by the complainant to her mother that the appellant “had been touching me repeatedly for many years” and to her friend that the appellant “had touched her vagina and touched her sexually … multiple times” were admissible as evidence of a preliminary complaint under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) – where the appellant contends that the statements alleged general misconduct and were not “about” the charged acts – whether the statements were admissible as preliminary complaints of the charged acts

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

R v AJS (2005) 12 VR 563; [2005] VSCA 288, cited
R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited
R v Riera [2011] QCA 77, cited
The Queen v Szach (1980) 23 SASR 504, cited

COUNSEL:

C A Cuthbert, with Y Chekirova, for the appellant
T A Fuller QC, with J N Hanna, for the respondent

SOLICITORS:

AMH Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES JA: I have had the advantage of reading the reasons for judgment of Philip McMurdo JA and agree for the reasons given that the appeal should be dismissed.
PHILIP McMURDO JA: After a trial the appellant was convicted of one count of indecent dealing with a child…

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 BCZ

Details

AGLC: R v BCZ [2016] QCA 232
Case: [2016] QCA 232
Decision Date: 13 September 2016

CaseChat Overview and Summary

In this case, the appellant was convicted of one count of indecent dealing with a child under 12 years and one count of rape. The appellant appealed the conviction, arguing that the trial judge had made errors in admitting or rejecting evidence. The court of appeal was required to determine whether the trial judge erred in admitting the complainant’s reference to a letter she had written to her mother, and in admitting statements made by the complainant to her mother and friend. The court of appeal needed to decide whether the complainant’s reference to the letter was inadmissible evidence of an earlier complaint, and whether the statements made by the complainant were admissible as evidence of a preliminary complaint.

The court of appeal found that the trial judge had not erred in admitting the complainant’s reference to the letter. The court found that the complainant’s reference to the letter was not inadmissible evidence of an earlier complaint, but rather was admissible as part of the res gestae of the charged acts. The court found that the statements made by the complainant to her mother and friend were also admissible as evidence of a preliminary complaint. The court found that the statements were not general misconduct, but rather were specific complaints about the charged acts. The court found that the trial judge had not erred in admitting the evidence, and dismissed the appeal.

The court of appeal dismissed the appeal and affirmed the conviction of the appellant.

Orders

Orders of the court

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 BCZ [2016] QCA 232
PARTIES:	R v BCZ (appellant)
FILE NO/S:	CA No 74 of 2016 DC No 778 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 24 March 2016
DELIVERED ON:	13 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2016
JUDGES:	Philippides and Philip McMurdo JJA and Daubney 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 convicted of one count of indecent dealing with a child under 12 years and one count of rape – where, in a pre-trial hearing, a letter written by the complainant to her mother was ruled inadmissible as evidence of a preliminary complaint – where, in the course of cross-examination, the complainant answered “no” when asked if she had told anyone about each incidence of offending on the indictment – where upon re-examination, in the course of explaining why she had not told anyone of the offending, the complainant referred to the letter and her mother’s response to it – where the appellant contends that the complainant’s reference to the letter was inadmissible evidence of an earlier complaint – whether the complainant’s evidence about the letter was admissible CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where, at the pre-trial hearing, it was ruled that statements made by the complainant to her mother that the appellant “had been touching me repeatedly for many years” and to her friend that the appellant “had touched her vagina and touched her sexually … multiple times” were admissible as evidence of a preliminary complaint under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) – where the appellant contends that the statements alleged general misconduct and were not “about” the charged acts – whether the statements were admissible as preliminary complaints of the charged acts Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A R v AJS (2005) 12 VR 563; [2005] VSCA 288, cited R v NM [2013] 1 Qd R 374; [2012] QCA 173, cited R v Riera [2011] QCA 77, cited The Queen v Szach (1980) 23 SASR 504, cited
COUNSEL:	C A Cuthbert, with Y Chekirova, for the appellant T A Fuller QC, with J N Hanna, for the respondent
SOLICITORS:	AMH Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent