R v BDJ - [2022] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDJ [2022] QCA 108

PARTIES:

R
v
BDJ
(appellant)

FILE NO:

CA No 223 of 2020
DC No 512 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 1 October 2020 (Dick SC DCJ)

DELIVERED ON:

17 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2022

JUDGES:

Fraser and Mullins JJA and Ryan J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of 12 counts of child sexual offences against his two stepdaughters – where the offences were committed between about 25 and 35 years before the trial – where the trial judge gave a direction pursuant to s 132BA of the Evidence Act 1977 (Qld) on the significant forensic disadvantage suffered by the appellant because of the effects of delay in prosecuting the offences – where the appellant submits he suffered a miscarriage of justice because the direction given by the trial judge was inadequate and/or wrong in law – whether the impugned direction informed the jury sufficiently of the nature of the appellant’s disadvantage – where the trial judge used the expression “to prove or disprove the allegation” in the impugned direction – whether using “prove or disprove” instead of “test” in the impugned direction was wrong in law in the circumstances of the trial – whether there was a miscarriage of justice

Evidence Act 1977 (Qld), s 132BA

Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
R v MBX [2014] 1 Qd R 438; [2013] QCA 214, cited

COUNSEL:

D P Jones for the appellant
D Nardone for the respondent

SOLICITORS:

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

THE COURT: On 1 October 2020, the appellant was convicted after trial of 12 counts generically described as child sexual offending against his two stepdaughters FM and JD. FM was born in February 1982 and was the complainant for counts 1 and 5-12. JD was born in October 1973 and was the complainant for counts 2-4. The offending on the indictment committed against FM was particularised as occurring over a period of time during which FM was four to 14 years old. The offending on the indictment committed against JD was particularised as being committed over a period of time during which she was 13 to 16 years old. Although complaints were first made by the complainants to police in 2006 and statements were obtained, there was a delay until October 2016 before further statements were obtained and the appellant then charged.
There is one ground of appeal that the appellant suffered a miscarriage of justice because the direction given pursuant to s 132BA of the Evidence Act 1977

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 BDJ

Details

AGLC: R v BDJ [2022] QCA 108
Case: [2022] QCA 108
Decision Date: 17 June 2022

CaseChat Overview and Summary

The appeal in R v BDJ was brought forth by the appellant, who was convicted of 12 counts of child sexual offences against his two stepdaughters. The offences in question spanned a period of about 25 to 35 years prior to the trial. The core contention in this case was whether the direction given by the trial judge, pursuant to s 132BA of the Evidence Act 1977 (Qld), adequately addressed the significant forensic disadvantage experienced by the appellant due to the delay in prosecuting the offences. The appellant argued that the direction was either inadequate or incorrect in law, leading to a miscarriage of justice.

The legal issues before the court involved determining whether the direction sufficiently informed the jury of the nature of the appellant's disadvantage and whether the use of the expression "to prove or disprove the allegation" in the direction was erroneous in the context of the trial. The court had to assess if these alleged errors constituted a miscarriage of justice. The appellant's ground of appeal centred on the claim that the direction was inadequate or wrong at law, potentially impacting the fairness of the trial.

The court examined the trial judge's direction and concluded that it adequately informed the jury of the appellant's disadvantage. The use of the expression "to prove or disprove the allegation" was found to be appropriate in the circumstances of this trial. The court determined that there was no miscarriage of justice as the direction was sufficient to guide the jury on the impact of the delay on the reliability of the evidence. Therefore, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is one ground of appeal that the appellant suffered a miscarriage of justice because the direction given pursuant to s 132BA of the Evidence Act 1977 (Qld) (the Act) was inadequate and/or wrong at law.Summary of the evidence This was a relatively short trial. The evidence was given over two days. On the third day, both counsel addressed the jury, the learned trial judge summed up and the jury commenced deliberations. They returned their verdicts on the fourth day. The complainants lived with the appellant, their mother and one or more siblings at the relevant times at various addresses. The appellant was her mother’s partner for as long as FM could remember. JD could remember meeting the appellant first when she was in year 6 in 1984. The offences occurred inside the various houses at which the family resided either when the appellant was alone in the house with one of the complainants or whilst others were in the house. The complainants’ mother died in 2002 and therefore did not give evidence. At the outset of the cross-examination of each of the complainants, the appellant’s trial counsel (who is not the counsel who appears for him on this appeal) asserted to the complainant that the appellant’s case was that none of the allegations of sexual impropriety made by the complainant against him ever happened and the cross-examination of the complainant then continued on that premise. The earliest count in time (count 1) was particularised as occurring between 1 February 1986 and 2 February 1987 that coincided with FM’s being four years old. It was the offence of indecent treatment of a child under 16 years, under 14. FM’s evidence relevant to count 1 included the following. FM was three or four years old when the mother met the appellant. The first address at which FM remembered living with the appellant was L Street. The family comprised FM’s mother, FM, JD who was eight years older than FM, their brother who was six years older than FM, their sister who was almost two years younger than FM and the appellant. The family moved to C Street before FM started preschool and she was three or four years old. When the family was living in C Street, FM took the appellant’s morning coffee into his bedroom. The appellant was on the mattress on the floor and picked FM up and placed her across his lap near his thighs. The appellant pulled back the sheet and he was not wearing any clothes. The appellant told her that she was a naughty girl and naughty girls needed to be punished and that was when he grabbed her hand and put it on his penis for 10 or so minutes. The appellant told her that “it was our secret and that if I ever told anybody, then I wouldn’t have a daddy”. In cross-examination, it was put to FM that at no stage did the appellant ever take her hand and place it on his penis. FM disagreed with that proposition. FM also gave evidence of uncharged acts that occurred at C Street as follows. The appellant would come into her room and wake her in the middle of the night and make her perform oral sex on him. He was dressed in a towel. He would also lift up FM’s nightie, push her underwear to the side and touch her vagina or put his finger inside her vagina.

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 BDJ [2022] QCA 108
PARTIES:	R v BDJ (appellant)
FILE NO:	CA No 223 of 2020 DC No 512 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 1 October 2020 (Dick SC DCJ)
DELIVERED ON:	17 June 2022
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2022
JUDGES:	Fraser and Mullins JJA and Ryan J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of 12 counts of child sexual offences against his two stepdaughters – where the offences were committed between about 25 and 35 years before the trial – where the trial judge gave a direction pursuant to s 132BA of the Evidence Act 1977 (Qld) on the significant forensic disadvantage suffered by the appellant because of the effects of delay in prosecuting the offences – where the appellant submits he suffered a miscarriage of justice because the direction given by the trial judge was inadequate and/or wrong in law – whether the impugned direction informed the jury sufficiently of the nature of the appellant’s disadvantage – where the trial judge used the expression “to prove or disprove the allegation” in the impugned direction – whether using “prove or disprove” instead of “test” in the impugned direction was wrong in law in the circumstances of the trial – whether there was a miscarriage of justice Evidence Act 1977 (Qld), s 132BA Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited R v MBX [2014] 1 Qd R 438; [2013] QCA 214, cited
COUNSEL:	D P Jones for the appellant D Nardone for the respondent
SOLICITORS:	Bouchier Khan Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent