R v BDT [No 2]

Case [2024] QCA 228

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDT [No 2] [2024] QCA 228

PARTIES:

R
v
BDT
(appellant)

FILE NO/S:

CA No 54 of 2023
DC No 365 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Bowen – Date of Conviction: 2 March 2023 (Lynham DCJ)

DELIVERED ON:

19 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2024

JUDGES:

Mullins P and Bradley and Crowley JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was found guilty after trial before a jury of maintaining a sexual relationship with a child (count 1), indecent treatment of a child under 16 (expose), under 12, under care (count 3), four counts of rape (counts 8, 9, 15 and 16) and other indecent treatment offences (counts 4, 6, 10 and 14) – where the appellant was found not guilty of two counts of indecent treatment of a child under 16 (expose), under 12, under care (counts 2 and 5) and other indecent treatment offences (counts 7, 11-13) – where the complainant for each count was the appellant’s stepdaughter – where the prosecution case at trial depended upon the jury accepting the complainant’s evidence of the offending that constituted that count as truthful and reliable – whether there was inconsistency between the verdicts on counts 2 and 3 – whether the quality of the evidence relied on for both counts was the same

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered

COUNSEL:

D A Marley for the appellant
D Kovac for the respondent

SOLICITORS:

Jurgensen Horne Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  The appellant was found guilty after trial in the District Court before a jury of maintaining a sexual relationship with a child (count 1), indecent treatment of child under 16 (expose), under 12, under care (count 3), two counts of indecent treatment of a child under 16, under 12, under care (counts 4 and 6), four counts of rape (counts 8, 9, 15 and 16) and two counts of indecent treatment of a child under 16, under care (counts 10 and 14).  These were all domestic violence offences.  The appellant was found not guilty of two counts of indecent treatment of a child under 16 (expose), under 12, under care (counts 2 and 5), indecent treatment of a child under 16 (procure), under 12, under care (count 7), indecent treatment of a child under 16 (expose), under care (count 11), indecent treatment of a child under 16 (indecent film etc), under care (count 12) and indecent treatment of a child under 16, under care (count 13).

  2. The prosecution had provided particulars of the counts that were provided to the jury at the commencement of the trial.  It was specified in those particulars that counts 2‑11 and 13-16 were particulars of count 1 and that count 12…

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Details
AGLC
R v BDT [No 2] [2024] QCA 228
Case
[2024] QCA 228
Decision Date

CaseChat Overview and Summary

The case of R v BDT [No 2] involved an appellant who was convicted of various charges including maintaining a sexual relationship with a child, indecent treatment of a child, and multiple counts of rape. The offences were committed against the appellant's stepdaughter, who was aged between 9 and 12 years at the time of the alleged incidents. The prosecution's case relied on the truthfulness and reliability of the complainant's evidence, while the defence maintained that none of the alleged acts occurred. The central issue in the trial was whether the jury should believe the complainant's account of the events.

The primary legal issues before the court were whether there was an inconsistency between the verdicts on counts 2 and 3 and whether the quality of the evidence relied on for both counts was the same. Count 2 related to indecent treatment of a child under 16, under 12, under care, while count 3 involved maintaining a sexual relationship with a child. The court had to determine if the jury's decision to acquit on count 2 but convict on count 3 was supported by the evidence and if the quality of the evidence for both counts was comparable.

The court examined the nature and quality of the evidence presented, particularly focusing on the complainant's credibility and the specifics of the alleged incidents. It was noted that the complainant's account of events was detailed and consistent across multiple statements and interviews. The court found that the jury was entitled to accept parts of the complainant's evidence as truthful and reliable while rejecting other parts. The quality of the evidence for counts 2 and 3 was deemed similar, as both depended on the complainant's account of the events during showers with the appellant. The court concluded that there was no inconsistency in the verdicts and that the jury's decision was supported by the evidence presented.

In light of the above, the appeal was dismissed. The court upheld the conviction and sentences imposed by the trial judge, finding no merit in the grounds of appeal presented by the appellant.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The prosecution case at trial in respect of each of the counts depended upon the jury accepting the complainant’s evidence of the offending that constituted that count as truthful and reliable. The defence case was that none of the alleged acts occurred. The issue for the jury at the trial was whether the offending occurred as detailed by the complainant.Background The complainant was the stepdaughter of the appellant. The period specified for the maintaining count was between 21 November 2016 and 12 May 2019 when the complainant was aged between 9 years and 12 years. The complainant’s mother met the appellant in 2011 and they married in 2014. They commenced living together in one regional town (the first town) with the complainant. The complainant’s mother and the appellant had children together between 2012 and 2019. The family (including the complainant) relocated to a second regional town (the second town) by 2014. They moved from their first address (the first address) in the second regional town to the second address (the second address) in that town from July 2018. The appellant had left ankle surgery on 21 November 2016 and was discharged from hospital the next day. When he was discharged, he was placed in a back slab which was a plaster cast that went around the back of his leg and he remained in that cast for two weeks. On 7 December 2016, the cast was removed, the sutures were removed from the wound and he was placed in a moon boot that was intended to be worn for four weeks. When the appellant was reviewed on 21 December 2016, he was not wearing the moon boot and reported that he felt good and was pain free and walking without issues on that ankle. The complainant went to stay with her biological father and his partner (the partner) from Mother’s Day 2019. In July 2019, the partner saw online an inappropriate photograph of the complainant in a bikini that was too small for her and spoke to her about it. It was that conversation in which preliminary complaint was made by the complainant about having showers with the appellant. In a second conversation that was a few weeks later after the partner had seen an even more inappropriate photograph of the complainant that had popped up on the partner’s son’s iPad, the complainant made preliminary complaint to the partner to the effect that the appellant “pushed her head into his private areas and made her do stuff while his hands went inside of her”. The partner and the complainant’s father took the complainant to the police.Summary of the evidence in respect of the offending The complainant’s s 93A statement was recorded on 13 August 2019. The complainant brought to the interview with police the notes she had typed up on her iPad in the previous couple of days. Those notes were exhibit 2 at the trial. Relevant to counts 2 and 3, those notes recorded that the appellant would always ask the complainant to have showers with him when her mother was at work and when he broke his ankle, he said to her “can you help me in the shower”.

Evidence

Evidence Before The Court

The complainant went to stay with her biological father and his partner (the partner) from Mother’s Day 2019. In July 2019, the partner saw online an inappropriate photograph of the complainant in a bikini that was too small for her and spoke to her about it. It was that conversation in which preliminary complaint was made by the complainant about having showers with the appellant. In a second conversation that was a few weeks later after the partner had seen an even more inappropriate photograph of the complainant that had popped up on the partner’s son’s iPad, the complainant made preliminary complaint to the partner to the effect that the appellant “pushed her head into his private areas and made her do stuff while his hands went inside of her”. The partner and the complainant’s father took the complainant to the police.Summary of the evidence in respect of the offending The complainant’s s 93A statement was recorded on 13 August 2019. The complainant brought to the interview with police the notes she had typed up on her iPad in the previous couple of days. Those notes were exhibit 2 at the trial. Relevant to counts 2 and 3, those notes recorded that the appellant would always ask the complainant to have showers with him when her mother was at work and when he broke his ankle, he said to her “can you help me in the shower”. The s 93A interview included the following evidence. After the appellant had returned home (to the first address) after his ankle operation, he asked the complainant to help him in the shower when her mother was at work. All she did was sit in the ensuite talking to the appellant while he was sitting in the shower with his foot on a red stool. She saw his whole body. She did not help him on that occasion. The second time the appellant asked the complainant to come into the shower with him in the ensuite which she did, he started talking and then he started stroking his private part and fiddling with his nipples. (It was during the second shower time that it was alleged that count 2 was committed.) The complainant said the second shower time was a couple of weeks after the first occasion but also thought that it might be close to two months after the first shower time. Her mother was at work. The police officer asked for more detail about how the appellant was stroking his penis. The complainant said:“So, when he went in, and when I, exactly the time that I got undressed, he started biting his lip. He started putting his hands below and I had no idea what he was doing but now I realise what he was doing, and it just disgusts me. And, and, yeah.” The complainant said the appellant was using his hand pulling his private part back and forth. The complainant said she did not “even understand what he was doing really” and she thought it was normal. She then described what he did to his nipples with his other hand. The complainant said the appellant was “very … touchy”. In response to the police officer’s question as to what she meant by “very touchy”, the complainant stated:“Like, I’m here and then he’s here and um, he would either be laying down or standing up with a, like, a, you know, old, like, the grey Woolworths bags. He’d have one of them on his cast and he would either be standing up or like, sitting down, resting his thing on the red stool, and when he stood up on the second time, he was like, walking around and like, not walking around, but like, moving, closer to me. So he would be right next to me, like, him right here and me right there, and he would be washing himself. Like, or grabbing something. Like, the shampoo and he would go, like, go down, bend over and then pick it up and then he would look up and, yeah, he did that like, all through the shower, like [INDISTINCT]. In the shower time there was like, ten minutes in there and same with the other one.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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