R v BDN - [2021] QCA 130

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDN [2021] QCA 130

PARTIES:

R
v
BDN
(appellant/applicant)

FILE NO:

CA No 102 of 2019
CA No 175 of 2019
DC No 458 of 2018
DC No 460 of 2018
DC No 461 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 22 March 2019; Date of Sentence: 30 May 2019 (Morzone QC DCJ)

DELIVERED ON:

11 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2021

JUDGES:

Morrison and Mullins JJA and Lyons SJA

ORDERS:

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted after trial before a jury of maintaining a sexual relationship with his stepdaughter – where the appellant was only convicted of two sexual offences relevant pursuant to s 229B(10) of the Criminal Code (Qld) for the purpose of proving the maintaining offence – where the complainant gave evidence of many uncharged acts that occurred during the period particularised for the maintaining offence – where the appellant asserted that the jury were not instructed on the standard of proof for the uncharged acts and were not adequately instructed on what constituted an unlawful sexual act – where the trial judge’s oral directions and question trail expressly stated that the jury could convict the appellant on the basis of the evidence of the other alleged acts only if they were satisfied beyond reasonable doubt that the appellant did those acts during the period alleged – where the trial judge’s directions to the jury that continuity of sexual conduct is an element of the maintaining offence were done in conjunction with the directions on the complainant’s evidence in support of the two sexual offences and the uncharged acts for the purpose of whether the jury were satisfied beyond reasonable doubt that the appellant had an unlawful relationship with the stepdaughter that involved more than one unlawful sexual act over the period particularised for the maintaining offence – whether the verdict for the maintaining offence arose as a result of a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted on one indictment after trial before a jury of one count of maintaining a sexual relationship with a child, two counts of indecent treatment of a child under 16, under 12, under care (domestic violence offence), one count of rape (domestic violence offence), and after early pleas of guilty of 24 counts of recording in breach of privacy (domestic violence offence) – where the complainant on that indictment was the appellant’s stepdaughter – where the appellant was also convicted after trial before a jury of two counts of indecent treatment of a child under 16, under care where the complainant was the stepdaughter’s friend and after…

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 BDN

Details

AGLC: R v BDN [2021] QCA 130
Case: [2021] QCA 130
Decision Date: 11 June 2021

CaseChat Overview and Summary

The appeal was brought by the appellant, BDN, against his conviction and sentence. The appellant was convicted after trial of maintaining a sexual relationship with his stepdaughter, along with several other sexual offences. The appellant argued that there was a miscarriage of justice in his conviction for maintaining a sexual relationship due to alleged deficiencies in the trial judge’s directions to the jury regarding the standard of proof and the nature of unlawful sexual acts. The appellant also contested that his sentence was manifestly excessive.

The central legal issues before the court were whether the trial judge's directions to the jury were inadequate, potentially leading to a miscarriage of justice, and whether the cumulative effect of the sentences imposed on the appellant was manifestly excessive. The court examined the trial judge's directions to determine if they were sufficient to guide the jury in assessing the evidence and applying the correct legal standards. Additionally, the court assessed the overall sentence to determine if it was appropriate given the nature and circumstances of the offences.

The court concluded that the trial judge’s directions to the jury were adequate and correctly aligned with legal standards, thereby ensuring that the jury understood the necessity of proof beyond reasonable doubt for all elements of the offence. The court found no miscarriage of justice in the conviction. Regarding the sentence, the court determined that the cumulative effect of the sentences did not render the overall punishment manifestly excessive, considering the gravity of the offences and the need for deterrence and denunciation.

The appeal was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

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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CITATION:	R v BDN [2021] QCA 130
PARTIES:	R v BDN (appellant/applicant)
FILE NO:	CA No 102 of 2019 CA No 175 of 2019 DC No 458 of 2018 DC No 460 of 2018 DC No 461 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 22 March 2019; Date of Sentence: 30 May 2019 (Morzone QC DCJ)
DELIVERED ON:	11 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2021
JUDGES:	Morrison and Mullins JJA and Lyons SJA
ORDERS:	1. Appeal dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant was convicted after trial before a jury of maintaining a sexual relationship with his stepdaughter – where the appellant was only convicted of two sexual offences relevant pursuant to s 229B(10) of the Criminal Code (Qld) for the purpose of proving the maintaining offence – where the complainant gave evidence of many uncharged acts that occurred during the period particularised for the maintaining offence – where the appellant asserted that the jury were not instructed on the standard of proof for the uncharged acts and were not adequately instructed on what constituted an unlawful sexual act – where the trial judge’s oral directions and question trail expressly stated that the jury could convict the appellant on the basis of the evidence of the other alleged acts only if they were satisfied beyond reasonable doubt that the appellant did those acts during the period alleged – where the trial judge’s directions to the jury that continuity of sexual conduct is an element of the maintaining offence were done in conjunction with the directions on the complainant’s evidence in support of the two sexual offences and the uncharged acts for the purpose of whether the jury were satisfied beyond reasonable doubt that the appellant had an unlawful relationship with the stepdaughter that involved more than one unlawful sexual act over the period particularised for the maintaining offence – whether the verdict for the maintaining offence arose as a result of a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted on one indictment after trial before a jury of one count of maintaining a sexual relationship with a child, two counts of indecent treatment of a child under 16, under 12, under care (domestic violence offence), one count of rape (domestic violence offence), and after early pleas of guilty of 24 counts of recording in breach of privacy (domestic violence offence) – where the complainant on that indictment was the appellant’s stepdaughter – where the appellant was also convicted after trial before a jury of two counts of indecent treatment of a child under 16, under care where the complainant was the stepdaughter’s friend and after…