R v Bdi

Case [2020] QCA 22 18 February 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BDI [2020] QCA 22

PARTIES:

R
v
BDI
(appellant)

FILE NO/S:

CA No 303 of 2018
DC No 654 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 5 November 2018 (Porter QC DCJ)

DELIVERED ON:

18 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2019

JUDGES:

Boddice and Jackson and Brown JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of seven counts of sexual offences following trial –where the complainant provided details of the complaint which was then recorded and transposed into a report – where that report was provided to detectives in order to investigate – where a formal witness statement was obtained from the complainant at a later date – whether the details of the complaint contained in the report were admissible as preliminary complaint evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of seven counts of sexual offences following trial – where the prosecution lead psychiatric evidence at trial of the complainant’s mental state – where the psychiatrist did not treat the complainant – where the psychiatrist gave evidence from medical notes – whether the evidence of the psychiatrist was inadmissible – whether the directions given to the jury were wrong in law

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant was convicted of seven counts of sexual offences following trial – where the prosecution had referred to the complainant as “victim” in closing – where the prosecution had criticised the defence counsel in closing – whether the prosecution’s closing address wrongly influenced the jury causing an unfair trial

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

Flori v Winter & Ors[2019] QCA 281, considered
R v AW[2005] QCA 152, considered
R v BCZ[2016] QCA 232, considered
R v CAU[2010] QCA 46, considered
R v DBA (2012) 219 A Crim R 408; [2012] QCA 49, considered
R v Mahony[2019] QCA 131, considered
R v MCO[2018] QCA 140, considered
R v MCT[2018] QCA 189, considered
R v NM [2013] 1 Qd R 374; [2012] QCA 173, considered
R v Riera[2011] QCA 77, considered
R v SBV[2011] QCA 330, considered
Suresh v The Queen (1998) 72 ALJR 769; (1998) 153 ALR 145; [1998] HCA 23, considered

COUNSEL:

S G Bain for the appellant
D Balic for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

BODDICE J: I agree with…

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 Bdi

Details

AGLC: R v Bdi [2020] QCA 22
Case: [2020] QCA 22
Decision Date: 18 February 2020

CaseChat Overview and Summary

The appeal was brought against a conviction for seven counts of sexual offences following a trial. The appellant challenged the conviction on multiple grounds, including the improper admission or rejection of evidence, the admissibility of psychiatric evidence, and the conduct of the prosecution during the trial. The central issue was whether the trial court had erred in admitting certain evidence, particularly a report containing details of the complaint that was provided to the investigating detectives. The appellant also contested the admissibility of psychiatric evidence from a psychiatrist who did not treat the complainant and argued that the prosecutor's closing address had unfairly influenced the jury.

The court examined the admissibility of the report detailing the complainant's initial complaint, noting that such reports are often used to guide the investigation. The court held that the report was admissible as it was relevant to the investigation and had not prejudiced the appellant. Regarding the psychiatric evidence, the court found that while the psychiatrist did not treat the complainant, the evidence was still admissible as it was based on medical notes and relevant to the complainant’s mental state. The court also determined that the prosecutor's closing address, while critical of the defence counsel, did not unfairly influence the jury to the extent that it caused an unfair trial.

The appeal was dismissed. The court found no basis to overturn the conviction, holding that the trial court had correctly admitted the contested evidence and that the prosecutor's conduct did not prejudice the fairness of the trial. The appellant's conviction for the seven counts of sexual offences was upheld.

Orders

Orders of the court

Appeal dismissed.

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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Citations

R v Bdi [2020] QCA 22

Most Recent Citation

R v DBV [2021] QCA 227

Cases Citing This Decision

R v Panagaris [2022] QCA 192
Citation 1 (Para 22)

…nurse Brownly as to the detail of the sexual assault upon her which differed from her police statement and her evidence. [6] R v BDI [2020] QCA 22.…
R v DBV [2021] QCA 227
Citation 2 (Para 20)

…interview on 29 October was a formal witness statement to a police officer, in the sense of that expression in s 4A(6). cf R v BDI (2020) 3 QR 348; [2020] QCA 22.…

See all citing cases →

Cases Cited

Flori v Winter [2019] QCA 281
Citation 1 (Para 2)

…of the provision, or in any other case to confirm the interpretation conveyed by the ordinary meaning of the provision.” (footnotes omitted) [21][2019] QCA 281 at [22]. [22]With whom Buss AJA and Henry J agreed. [23](2019) 373 ALR 214.…
R v Mahony [2019] QCA 131
Citation 2 (Para 2)

…the evidence would have prejudiced the appellant’s prospects of acquittal. Such a prospect has not been established in this case. [51] R v Mahony [2019] QCA 131, [84] referring to Dhanhoa v The Queen (2003) 217 CLR 1 at 49 per McHugh and Gummow JJ. [52]At [84] and [107].…
R v A2; R v Magennis; R v Vaziri [2019] HCATrans 122
Citation 3 (Para 2)

…onveyed by the ordinary meaning of the provision.” (footnotes omitted) [21][2019] QCA 281 at [22]. [22]With whom Buss AJA and Henry J agreed. [23](2019) 373 ALR 214.…
R v MCT [2018] QCA 189
Citation 4 (Para 5)

…or irrelevant emotion, and numerous statements may be found in the cases about the undesirability of emotion.” (footnotes omitted) [78] R v MCT [2018] QCA 189 at [40]-[41]. [79]With whom Sofronoff P and Philippides JA agreed.…
R v MCO [2018] QCA 140
Citation 5 (Para 1)

…from the expert opinion in the manner originally contended for by the appellant, as that evidence has not been given. [66][2011] QCA 330. [67][2018] QCA 140. [68] R v SBV [2011] QCA 330 at [12]; R v MCO [2018] QCA 140 at [69]; R v CAU [2010] QCA 46 at [103].…
R v BCZ [2016] QCA 232
Citation 6 (Para 4)

…J. [16][2011] QCA 77 at [7]; followed in R v NM [2013] 1 Qd R 374 at [24], per Fryberg J. [17] R v BCZ [2016] QCA 232 at [37]-[38], per McMurdo JA; referring to R v NM [2013] 1 Qd R 374 at 381. [18](2012) 219 A Crim R 408 at [20], Daubney and Applegarth JJ agreeing. [19][2005] 1 Qd R 180. [20][2011] QCA 77.…
R v NM [2012] QCA 173
Citation 7

…8] QCA 140, considered R v MCT [2018] QCA 189, considered R v NM [2013] 1 Qd R 374; [2012] QCA 173, considered R v Riera [2011] QCA 77, considered R v SBV [2011] QCA 330, considered Suresh v The Queen (1998) 72 ALJR 769; (1998) 153 ALR 145; [1998] HCA 23, considered COUNSEL: S G Bain for the appellant D Balic for…
R v DBA [2012] QCA 49
Citation 8

…232, considered R v CAU [2010] QCA 46, considered R v DBA (2012) 219 A Crim R 408; [2012] QCA 49, considered R v Mahony [2019] QCA 131, considered R v MCO [2018] QCA 140, considered R v MCT [2018] QCA 189, considered R v NM [2013] 1 Qd R 374; [2012] QCA 173, considered R v Riera [2011] QCA 77, considered R v SB…
R v SBV [2011] QCA 330
Citation 9 (Para 1)

…to reason backwards from the expert opinion in the manner originally contended for by the appellant, as that evidence has not been given. [66][2011] QCA 330. [67][2018] QCA 140. [68] R v SBV [2011] QCA 330 at [12]; R v MCO [2018] QCA 140 at [69]; R v CAU [2010] QCA 46 at [103].…
R v Riera [2011] QCA 77
Citation 10 (Para 4)

…]. [15] R v AW [2005] QCA 152 at [26]; followed in R v NM [2013] 1 Qd R 374 at [23], per Fryberg J. [16][2011] QCA 77 at [7]; followed in R v NM [2013] 1 Qd R 374 at [24], per Fryberg J. [17] R v BCZ [2016] QCA 232 at [37]-[38], per McMurdo JA; referring to R v NM [2013] 1 Qd R 374 at 381. [18](2012) 219 A Crim…
R v CAU [2010] QCA 46
Citation 11 (Para 8)

…ert opinion. Dr Tracey’s opinion evidence was properly admissible, as was ultimately conceded by counsel for the appellant in argument.[60] [58][2010] QCA 46 at [102]-[103]. [59] Farrell v The Queen (1998) 194 CLR 286 at 292. [60]T1-19/10-37.…
R v AW [2005] QCA 152
Citation 12 (Para 11)

…rmally proven as a statement in court proceedings. The complaint to Officer Weibel was not, according to the Crown, in that category. [12][2005] QCA 152.…
Dhanhoa v The Queen [2003] HCA 40
Citation 13 (Para 2)

…spects of acquittal. Such a prospect has not been established in this case. [51] R v Mahony [2019] QCA 131, [84] referring to Dhanhoa v The Queen (2003) 217 CLR 1 at 49 per McHugh and Gummow JJ. [52]At [84] and [107].…
Farrell v The Queen [1998] HCA 50
Citation 14 (Para 8)

…admissible, as was ultimately conceded by counsel for the appellant in argument.[60] [58][2010] QCA 46 at [102]-[103]. [59] Farrell v The Queen (1998) 194 CLR 286 at 292. [60]T1-19/10-37.…
Suresh v The Queen [1998] HCA 23
Citation 15

…011] QCA 330, considered Suresh v The Queen (1998) 72 ALJR 769; (1998) 153 ALR 145; [1998] HCA 23, considered COUNSEL: S G Bain for the appellant D Balic for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent…
R v Parker [1993] QCA 444
Citation 16 (Para 13)

…ng remarks made by the prosecutor wrongly influenced the verdict and resulted in an unfair trial.[84] Ground 3 is not made out. [84] R v Parker [1993] QCA 444 at 20-21.…
Pty Ltd v Sprowles 636 F Supp 1419
Citation 17 (Para 4)

…defence implicitly consented to the evidence of the medical records being given which were the basis of Dr Tracey’s opinion. [54] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.…

Legislation Cited

Justices Act 1886 (Qld) 110A(6A), 110A(6C)
3 mentions (from Para 9)
Criminal Law (Sexual Offences) Act 1978 (Qld) 4A
2 mentions (from Para 3)
Acts Interpretation Act 1954 (Qld)
1 mention (from Para 4)
Evidence Act 1977 (Qld)
1 mention (from Para 5)
Oaths Act 1867 (Qld)
1 mention (from Para 9)

CITATION:	R v BDI [2020] QCA 22
PARTIES:	R v BDI (appellant)
FILE NO/S:	CA No 303 of 2018 DC No 654 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Beenleigh – Date of Conviction: 5 November 2018 (Porter QC DCJ)
DELIVERED ON:	18 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2019
JUDGES:	Boddice and Jackson and Brown JJ
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of seven counts of sexual offences following trial –where the complainant provided details of the complaint which was then recorded and transposed into a report – where that report was provided to detectives in order to investigate – where a formal witness statement was obtained from the complainant at a later date – whether the details of the complaint contained in the report were admissible as preliminary complaint evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of seven counts of sexual offences following trial – where the prosecution lead psychiatric evidence at trial of the complainant’s mental state – where the psychiatrist did not treat the complainant – where the psychiatrist gave evidence from medical notes – whether the evidence of the psychiatrist was inadmissible – whether the directions given to the jury were wrong in law CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant was convicted of seven counts of sexual offences following trial – where the prosecution had referred to the complainant as “victim” in closing – where the prosecution had criticised the defence counsel in closing – whether the prosecution’s closing address wrongly influenced the jury causing an unfair trial Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Flori v Winter & Ors[2019] QCA 281, considered R v AW[2005] QCA 152, considered R v BCZ[2016] QCA 232, considered R v CAU[2010] QCA 46, considered R v DBA (2012) 219 A Crim R 408; [2012] QCA 49, considered R v Mahony[2019] QCA 131, considered R v MCO[2018] QCA 140, considered R v MCT[2018] QCA 189, considered R v NM [2013] 1 Qd R 374; [2012] QCA 173, considered R v Riera[2011] QCA 77, considered R v SBV[2011] QCA 330, considered Suresh v The Queen (1998) 72 ALJR 769; (1998) 153 ALR 145; [1998] HCA 23, considered
COUNSEL:	S G Bain for the appellant D Balic for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent