R v BDA

Case [2017] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDA [2017] QCA 48

PARTIES:

R
v
BDA
(appellant)

FILE NO/S:

CA No 173 of 2016
DC No 232 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Cairns – Date of Conviction: 13 June 2016

DELIVERED ON:

23 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2016

JUDGES:

Margaret McMurdo P and Morrison and Philippides JJA
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 – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child (count 1), five counts of rape (counts 2, 5, 7, 10 and 11) and one count of indecent treatment (count 8) – where the appellant submitted that there were inconsistencies in the complainant’s statements to police and to the preliminary complaint witnesses – where the complainant’s mother gave evidence in support of the complainant’s evidence – where the trial judge had given directions regarding the inconsistencies in the complainant’s evidence – whether the evidence of the complainant was significantly and materially inconsistent with the evidence of preliminary complaint witnesses – whether the conviction was unreasonable or cannot be supported having regard to the evidence

Evidence Act 1977 (Qld), s 93A

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited
R v RAU[2015] QCA 217, applied

COUNSEL:

A J Glynn QC for the appellant
M B Lehane for the respondent

SOLICITORS:

Philip Bovey & Co Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  I agree with the reasons of Morrison JA and Philippides JA for dismissing this appeal against conviction.

  2. The jury were entitled to reject the appellant’s exculpatory evidence.  As the primary judge identified for the jury, internal inconsistencies in the 12 year old complainant’s account of the alleged offences, and inconsistencies between her account and the evidence of preliminary complaint witnesses made it necessary for the jury to scrutinize the complainant’s evidence carefully before accepting it as truthful and reliable.  The complainant, however, maintained her account that the appellant committed each of the offences on which he was convicted.  It was concerning that the complainant was prone to attention-seeking behaviour and that her school friend, AT, stated that the complainant’s account to her of the appellant’s conduct “kept changing, so [AT] didn’t believe about it. And then [she was] still not sure about some bits ‘cause they changed quite a lot”.[1]  Nevertheless, the preliminary complaint evidence was consistent with the complainant’s account of counts 3 and 4 (the appellant’s photographing and touching of her vagina) and supported her credibility…

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AGLC
R v BDA [2017] QCA 48
Case
[2017] QCA 48
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted of one count of maintaining an unlawful sexual relationship with a child, five counts of rape, and one count of indecent treatment. The appellant appealed against his convictions, arguing that the verdicts were unreasonable because they relied on the complainant's evidence, which was inconsistent with the accounts of the preliminary complaint witnesses. The complainant's mother testified in support of her daughter's evidence. The trial judge had directed the jury regarding the inconsistencies in the complainant's evidence.

The primary legal issue before the court was whether the evidence of the complainant was significantly and materially inconsistent with the evidence of the preliminary complaint witnesses, and if so, whether the conviction was unreasonable or could not be supported given the evidence. The court considered the evidence provided by the complainant, her mother, and the preliminary complaint witnesses, and examined the directions given by the trial judge to the jury. The court concluded that the jury was properly directed regarding the inconsistencies and that the evidence was sufficient to support the convictions.

The court found that the evidence of the complainant was not significantly and materially inconsistent with the evidence of the preliminary complaint witnesses, and that the jury had properly considered the inconsistencies in reaching their verdicts. The court dismissed the appeal, finding that the convictions were properly based on the evidence and that the verdicts were not unreasonable or unsupported. The convictions were upheld.

The court did not make any further orders. The appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The appellant appeals against his convictions on the ground that the verdicts were unreasonable, given that they depended upon the jury’s acceptance of the evidence of the complainant, which it was contended was significantly and materially inconsistent with the accounts of the witnesses who gave evidence of the preliminary complaint.Background The complainant, who was born in 2002, and her sister lived with the complainant’s mother. The appellant was in a sexual relationship with the complainant’s mother (who lived in Cairns) while simultaneously maintaining a relationship with his wife (who lived largely in Canada). The fact of his relationship with each was known to the other. When the appellant was in Cairns he would spend a night, or occasionally two nights, each week with the complainant’s mother. He also visited his wife periodically. The appellant’s evidence was that the relationship with the complainant’s mother had largely ended by late 2013. The complainant gave evidence of a number of incidents of a sexual nature which were said to have occurred between the second and third school term of 2013 and during the first or second term of 2014 as follows:(a)On an occasion, when they were in the swimming pool, the appellant asked the complainant to show him her vagina and touched it, penetrating it with his finger (count 2).(b)Later on that day, while the complainant was lying on a couch in the living room, the appellant asked her to remove her pants, which she did, and he took photos of her vagina with his phone. In the process he touched her on the vagina (counts 3 and 4).(c)On another later occasion in the swimming pool, the appellant penetrated the complainant with his finger (count 5).(d)On an occasion, she followed the appellant into the garden shed where he told her to sit down and remove her pants. She did this and he knelt down and licked her vagina, penetrating it with his tongue (count 7).(e)While count 7 was occurring, her mother called out and said she was going out and they moved to her sister’s bedroom where he again told her to remove her pants. She did so and lay on the bed and he again penetrated her with his tongue (count 8).(f)The complainant said, “…mum was folding the clothes with [the appellant] and he was folding my clothes. And he then put my clothes in my room and said ‘look in your pile of clothes’ so I did and it was a dildo. Then I put it back and I gave it back to him, and I pretended I never touched it, like, never knew it was there and then I gave it back to him. And then that night – [when] Mum was asleep – he came into my room, knocked on my door. I opened the door and he had his dildo in his hand I just closed the door on him. He said he bought it for me, and I said I don’t want it, and then he just told me to keep it and I said ‘no’ and then I just gave it back to him and he put it back in mum’s room but I don’t know where” (count 9).(g)On two occasions the appellant asked the complainant to lie on the bed while he digitally penetrated her, on one occasion in her bedroom (count 10) and on another in her mother’s bedroom (count 11).

Evidence

Evidence Before The Court

As to count 6 (on which the Crown entered a nolle prosequi) the complainant’s evidence was that she was in the garden with the appellant while he was watering plants. He went behind the shed and asked her to lift her top up. She did so and “he touched [her] boobs … He was just squeezing them”. This did not accord with her evidence when asked at the pre-recording hearing about an incident that occurred behind the shed, which was that “Yes I think he showed me his dick... I think he showed me his penis. That’s what I remember from that”.Evidence at trialThe prosecution evidence The complainant’s evidence was that she was 11 years of age at the time of the offending. She was 12 by the time she provided her three s 93A statements on 13 August 2014, 15 August 2014 and 3 September 2014. Her evidence was that the first incident of abuse occurred when she was in the pool. The appellant then touched and later took photos of her vagina when she was on the lounge. The complainant thought those acts took place on the same day as the incident in the pool. The complainant’s evidence was that she did not complain about the appellant’s conduct because her mother liked the appellant and she did not want to “wreck anything for her”. She also gave evidence that her mother also reprimanded her (“got up her”) the day after the photographs were taken, after discovering the images on the appellant’s phone. The complainant’s mother gave evidence confirming she reacted in this manner. In the last of the complainant’s interviews, she described an incident where the appellant hid a yellow dildo in her clean clothes. The dildo was still in its box, which was see‑through. Later that same night, the complainant returned the dildo to the appellant, however, he again tried to give it back to her, although at that stage, the dildo was out of its box. She again refused it. On 18 September 2014, after executing a search warrant at the appellant’s premises, the police located a yellow dildo in a half ripped open brown sandwich bag. The complainant told the police that she had spoken to five of her friends about aspects of the appellant’s offending. With the exception of AW, she was unclear as to the extent of the detail she gave them. The police interviews with those children took place on 23 August 2014 and 6 September 2014. The complainant’s mother gave evidence that the appellant was a “father figure” to her daughter. She described an occasion where the complainant and the appellant had been swimming in the pool. Later that day, after dinner, she went to the shop leaving the complainant and the appellant alone in the lounge room. The complainant was in the long lounge chair; when she returned, the pair were still in the lounge room. The complainant’s mother gave evidence of checking the appellant’s phone later that night and finding photographs of her daughter lying on the couch with her vagina showing. She deleted the images. The next day, after reprimanding her daughter, she confronted the appellant. The appellant admitted the offending saying, “Don’t blame her, it’s not her fault. She was just trying to please me because I was drunk”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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