R v BDJ

Case [2020] QCA 27

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDJ [2020] QCA 27

PARTIES:

R
v
BDJ
(appellant)

FILE NO/S:

CA No 220 of 2018
DC No 429 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 3 August 2018 (Coker DCJ)

DELIVERED ON:

28 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2019

JUDGES:

Fraser JA and Lyons SJA and Boddice J

ORDERS:

1.   The appeal be allowed.

2.   The appellant’s conviction on Count 12 be set aside and a verdict of acquittal entered on that Count.

3.   The appellant’s convictions on Counts 1 to 4, 7 to 11 and 13 to 15 be set aside.

4.   There be a new trial in respect of Counts 1 to 4, 7 to 11 and 13 to 15.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the appellant was found guilty of two counts of indecent treatment of a child, under 16 years, under 12, six counts of rape, one count of maintaining a sexual relationship with a child, two counts of indecent treatment of a child, under 16, under care and two counts of indecent treatment of a child, under 16, under 12, under care – where the appellant was found not guilty of two counts of common assault – where the appellant was sentenced to 14 years imprisonment for the count of maintaining a sexual relationship with a child and lesser concurrent periods of imprisonment for the remaining counts – where the appellant appeals the convictions on the ground that the trial Judge erred in ruling that the Crown could charge that the complainants were under 12 years of age – whether the acts of the appellant constituted an offence under s 11(1) of the Criminal Code (Qld) when the conduct occurred and at the time the charges were preferred against the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant appeals the convictions on the ground that the trial Judge erred in ruling evidence of a conversation said to have taken place between the appellant and one of the complainants was admissible and capable of showing a consciousness of guilt by the appellant – where the trial Judge directed the jury as to the need to be satisfied that the appellant’s words amounted to an admission – whether the trial Judge was required to address the jury as to what conduct the jury must be satisfied is the subject of any such admission – whether there was a material risk that the jury would improperly use the evidence in being satisfied as to reliability and credibility – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant appeals the convictions on the ground that the Crown did not sufficiently or properly particularise…

Continue reading R v BDJ

Sign in free to access the full text

Details
AGLC
R v BDJ [2020] QCA 27
Case
[2020] QCA 27
Decision Date

CaseChat Overview and Summary

The appellant in this case has appealed against his convictions for multiple counts of indecent treatment of children and rape, among other offences, arguing that the trial judge made several errors that led to an unsafe and unfair verdict. The respondent argued that the trial judge's errors did not result in a substantial miscarriage of justice. The appellant was found guilty of two counts of indecent treatment of a child under 16 years of age under 12, six counts of rape, one count of maintaining a sexual relationship with a child, two counts of indecent treatment of a child under 16 years of age under care, and two counts of indecent treatment of a child under 16 years of age under 12 under care. He was found not guilty of two counts of common assault. The appellant was sentenced to 14 years imprisonment for the count of maintaining a sexual relationship with a child and lesser concurrent periods of imprisonment for the remaining counts. The appellant appealed on several grounds, including that the trial judge erred in ruling that the Crown could charge that the complainants were under 12 years of age, that the trial judge erred in admitting evidence of conversations between the appellant and one of the complainants, and that the Crown did not sufficiently or properly particularise each of the counts. The court found that there was no doubt that at the time each of the acts the subject of Counts 1 and 7 was committed by the appellant, that act constituted an offence of indecent treatment of a child, provided that child was under the age of 14 years. However, the court found that there was insufficient evidence to support Count 12, and that the verdict in respect of Count 12 ought to be set aside and a verdict of acquittal entered in its place. The court found that the appellant's convictions on Counts 1 to 4, 7 to 11, and 13 to 15 ought to be set aside and a new trial ordered. The court also found that the appellant's conviction in respect of Count 12 should be set aside, with a verdict of not guilty entered in its place. The appeal was allowed, the appellant's conviction on Count 12 was set aside and a verdict of acquittal entered on that count, the appellant's convictions on Counts 1 to 4, 7 to 11 and 13 to 15 were set aside, and there was a new trial in respect of Counts 1 to 4, 7 to 11 and 13 to 15.

Orders

Orders of the court

1. The appeal be allowed.

2. The appellant’s conviction on Count 12 be set aside and a verdict of acquittal entered on that Count.

3. The appellant’s convictions on Counts 1 to 4, 7 to 11 and 13 to 15 be set aside.

4. There be a new trial in respect of Counts 1 to 4, 7 to 11 and 13 to 15.

Background

Background to the litigation

The appellant appeals those convictions. In his amended Notice of Appeal, the appellant abandoned Grounds 5 and 6 and relied on the following remaining grounds:1.The learned trial Judge erred in ruling, in relation to Counts 1 and 7, that the Crown could charge that the complainants were under 12 years of age.2.The learned trial Judge erred in ruling that evidence from FM that: “I haven’t spoken to BDJ since my mum passed away. I saw BDJ at my mum’s funeral. Before the funeral, all us kids went out to the house to get some photos of us growing up and school photos. While at the house, I recall BDJ saying to JD, “why have you got to be such a bitch about this?” I heard JD say words to the effect of, “because of what you did to me when I was younger”. BDJ said words to the effect of “do you want me to turn myself in right now? Come on, let’s call them now” was admissible and capable of showing a consciousness of guilt by the applicant. Further, any probative value it might possess is outweighed by its prejudicial value.3.The learned trial Judge erred in ruling that evidence from JD that: “BDJ saw the photos of himself that I had cut out and said “what about my family?” I turned around and said “you never had a family, and everything you’ve done – you don’t even deserve to be here”. BDJ said “well if you want me to go and turn myself into the police now, then I will do it”. I said to BDJ “go back to New Zealand” was admissible and capable of showing a consciousness of guilt by the applicant. Further, any probative value it might possess is outweighed by its prejudicial value.4.The learned trial Judge erred in not discharging the jury in consequence of inadmissible and prejudicial evidence introduced by FM and JD despite attempts to prevent it.7.The Crown did not sufficiently or properly particularise each of the counts.8.The learned trial Judge erred in finding that the Crown did sufficiently and properly particularise each of the counts.9.The convictions on Counts 1 to 4 and 7 to 15 are inconsistent with the acquittals on Counts 5 and 6.10.The learned trial Judge erred in rejecting the no case to answer submission and finding that there was a case to answer.11.The conviction on Count 12 is unreasonable and unsupported on the evidence.12.The learned trial Judge misdirected the jury in relation to the evidence of alleged admissions by the applicant.Background The offences were all committed between 1986 and 1997. They concerned two female complainants, FM (FM) and JD (JD). The appellant was the stepfather of each of the complainants. The complainant in Counts 1 and 7 to 15 was FM. She was born on 2 February 1982. She was aged four years at the commission of the first of those offences and aged between six and 15 years at the commission of the remaining offences. The complainant in Counts 2 to 6 was JD. She was born on 30 October 1973. She was aged between 13 and 16 years at the commission of Counts 2 to 4.Trial

Evidence

Evidence Before The Court

The Crown called FM, JD and several other witnesses at trial. At the conclusion of the Crown case, the appellant elected to neither give nor call evidence.EvidenceFM FM, a registered nurse, aged 36, met the appellant at about the age of three or four. He married her mother when FM was aged five or six. FM had three siblings, an older sister, JD, a younger sister, FP, and a brother, FL. FM first remembered living with the appellant in Mount Louisa. When she was aged three or four, the family moved to Hermit Park. She started school whilst living at that address. In about grade 2, the family moved to Deeragun. The family moved to Deeragun at the end of 1989, the year her brother turned 13. FM saw the appellant as her father. He worked for the local Council. Her mother did odd jobs, cleaning houses and running a smoko van. FM, from about the age of four, had a job of taking to the appellant his morning coffee. One morning, the appellant sat FM across his lap. The appellant said she was a naughty girl and sometimes naughty girls needed to be punished. He pulled down the sheet, exposing himself. He started touching himself and asked FM to touch him.[1] The appellant placed FM’s hand on his penis and held her hand moving it up and down (Count 1). FM did not want to and was shaking her head. She could not remember if she had actually spoken those words. After about ten minutes, the appellant told FM it was their secret and that if she ever told anybody she would no longer have a daddy, her mother would not have a husband, it would be all her fault and she would not want that, because he would go to jail.[1]AB143/14. FM said the appellant would also come into her room, in the night time, with just a towel around his waist. He would wake her up by whispering her name and make her touch his penis and make her perform oral sex on him. On occasions, he would lift up FM’s nightie and push her knickers to the side. The appellant would touch her, sometimes putting his fingers inside her vagina. On other occasions, he would perform oral sex on FM. FM remembered one occasion after Christmas 1987 when the appellant came into her room in the middle of the night. The corner of the bed broke whilst the appellant was performing oral sex on her (Count 7). The appellant tried to fix it unsuccessfully. He told her he would fix it in the morning. That incident happened on a morning she was getting up early to play with Lego she had received as a gift that Christmas.[2] It was a school day. When FM came home from school, the bed was fixed.[2]AB148/10. FM said there were occasions when, after being woken up by the appellant, she could not go back to sleep. She could hear the appellant having sex with somebody at JD’s end of the verandah. The noises came from JD’s room. She could hear JD crying and sometimes asking the appellant to stop. FM accepted she did not know for sure it was the appellant. She could not see the person. One morning, after the family moved to Deeragun, the appellant told FM to tell her mother she was sick and could not go to school. The appellant said FM would get a day at home to do whatever she liked. FM told her mother she was sick and remained at home. Only FM and the appellant were at home. She thought the appellant had a rostered day off. FM estimated she was in grade two or three, aged seven or eight.

Decision

Reasons for decision

The evidence led in support of Count 12 was insufficient to establish guilt beyond reasonable doubt. There was no evidence of indecent touching at the time of the showing of the pornographic material. The jury’s verdict in respect of Count 12 ought to be set aside and a verdict of acquittal entered in its place.Conclusion The appellant has established material misdirections warranting a finding that the appellant’s convictions on Counts 1 to 4, 7 to 11, and 13 to 15 ought to be set aside and a new trial ordered. The appellant’s conviction in respect of Count 12 should also be set aside, with a verdict of not guilty entered in its place.Orders I would order:1.The appeal be allowed.2.The appellant’s conviction on Count 12 be set aside and a verdict of acquittal entered on that count.3.The appellant’s convictions on Counts 1 to 4, 7 to 11 and 13 to 15 be set aside.4.There be a new trial in respect of Counts 1 to 4, 7 to 11 and 13 to 15.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits there were two misdirections by the trial Judge. First, in respect of Count 9. However, that misdirection did not result in a substantial miscarriage of justice. Second, the trial Judge erred in failing to expressly direct the jury, in respect of Count 8, that the pornographic offences and Counts 1 and 7 were not particulars of that maintaining count. However, there was no material miscarriage of justice. The jury’s findings of guilt in respect of Counts 10, 11, 13, 14, and 15 mean the jury was satisfied beyond reasonable doubt of at least three offences. There is no material risk the appellant was denied a fair chance of acquittal.ConsiderationGround 1 Section 11 of the Criminal Code provides:“Effect of changes in law(1)A person can not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence. (2)If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender can not be punished to any greater extent than was authorised by the former law, or to any greater extent than is authorised by the latter law.” The focus of section 11(1) is punishment for an act constituting an offence. The relevant criteria for consideration is whether the act constituted an offence when it occurred and at the time charges were preferred against the appellant.[25][25]R v HXY [2017] QSC 108 at [30]. There is no doubt that at the time each of the acts the subject of Counts 1 and 7 was committed by the appellant, that act constituted an offence of indecent treatment of a child, provided that child was under the age of 14 years. There is also no doubt that each of the particularised acts relied upon to constitute Counts 1 and 7 constituted an offence when the appellant was charged with those counts. That offence was indecent treatment of a child under 16 years. The difference between the respective offences is that, by the time the appellant was charged, there was in existence an offence with a circumstance of aggravation, namely that the child was under 12. That circumstance of aggravation, which did not exist when the offence was committed, had a consequence as to the maximum punishment that may be imposed upon an offender who committed the offence with the circumstance of aggravation. The consequence of a change to legislation is the subject of specific legislative provision in the Acts Interpretation Act. Section 20 of that Act expressly preserves repealed legislation for the purposes of a prosecution for an offence arising under the Act.[26][26]R v PAZ [2018] 3 Qd R 50; [2017] QCA 263; and also R v JAA [2018] QCA 365; R v Nooryan [2019] QCA 294. As the offence of indecent treatment of a child under 14 years was operational at the time of the commission of the act by the appellant and that act remains an offence under the legislation in effect at the time the appellant was charged with that offence, the appellant is liable to both prosecution and punishment for the offence. However, the offence committed by him was indecent treatment of a child under 14 years. The Verdict and Judgment Record should be corrected accordingly.