R v BDV - [2022] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

R v BDV [2022] QCA 219

PARTIES:

R
v
BDV
(appellant)

FILE NO/S:

CA No 244 of 2021
DC No 203 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 2 September 2021 (Coker DCJ)

DELIVERED ON:

Date of Orders: 20 July 2022
Date of Publication of Reasons: 11 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2022

JUDGES:

Mullins P, Bond JA and North J

ORDERS:

Date of Orders: 20 July 2022

1.   Appeal allowed.

2.   Set aside the convictions on counts 1, 3, 4, 5 and 6.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of five counts of rape of the complainant with whom he was in a sexual relationship – where it was common ground at trial that the issues of consent and honest and reasonable but mistaken belief as to consent arose for the jury’s consideration – where the jury should have been directed to consider the evidence of the circumstances on each occasion and what could constitute consent and withdrawal of consent by reference to the evidence – where the complainant’s evidence relevant to lack of consent was also relevant to the defence of mistake of fact – where the trial judge’s direction on the defence was an abstract proposition unconnected with the direction dealing with the proof of lack of consent – whether a miscarriage of justice occurred because the jury was not adequately instructed about how the evidence related to the issues of lack of consent and mistake of fact

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of five counts of rape of the complainant with whom he was in a sexual relationship – where the trial judge gave a direction on the use of the evidence that was admitted at the trial relating to the violent conduct of the appellant – where the appellant was violent on the night prior to the complainant making the complaint to the police about the rapes and this was relevant to explain why the complaint was made – where the direction given by the trial judge was adequate in relation to this evidence – where there was other evidence of violent conduct given by the complainant and a witness – where it was not correct for the trial judge to direct the jury on this evidence when such conduct occurred after the incidents the subject of counts 1 and 3 and the complainant’s evidence on counts 4-6 did not make the appellant’s violent behaviour relevant in any way to those counts

Criminal Code (Qld), s 24, s 348, s 620

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
HML v The Queen (2008) 235 CLR 334;

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 BDV

Details

AGLC: R v BDV [2022] QCA 219
Case: [2022] QCA 219
Decision Date: 20 July 2022

CaseChat Overview and Summary

In the case of R v BDV, the appellant was convicted of five counts of rape involving the complainant with whom he was in a sexual relationship. The primary issue on appeal was whether the trial judge's directions to the jury regarding the evidence on consent and the defence of honest and reasonable but mistaken belief in consent amounted to a miscarriage of justice. The jury should have been properly guided on how to interpret the evidence in relation to these issues, but the trial judge's directions were deemed inadequate as they did not sufficiently address the specific evidence and how it related to the concepts of consent and mistaken belief.

The court had to determine whether the appellant's convictions should be overturned due to the trial judge's inadequate instructions on these critical legal matters. The appellate court found that the trial judge's direction on consent and the defence of mistake of fact was an abstract proposition that did not connect with the evidence presented. This failure to properly instruct the jury on how to consider the evidence in relation to these defences resulted in a miscarriage of justice. Additionally, the court examined the trial judge's direction on the evidence of the appellant's violent conduct, finding it adequate in relation to one piece of evidence but incorrect for the other instances of violent conduct presented.

The court concluded that the appellant had demonstrated a miscarriage of justice due to the inadequate directions on consent and mistaken belief in consent. As a result, the convictions on counts 1, 3, 4, 5, and 6 were set aside, and a retrial was ordered. The appeal was allowed, and the convictions were quashed.

Orders

Orders of the court

59. Orders

60. It was apparent at the hearing of the appeal that the appellant had shown that there was a miscarriage of justice due to the inadequate directions on the issues of consent and mistake of fact and that it was not a matter for the application of the proviso. The orders made at the conclusion of the appeal were:

1. Appeal allowed.

2. Set aside the convictions on counts 1, 3, 4, 5 and 6.

3. Retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant’s case at trial was primarily that the jury would not find the complainant to be a credible and reliable witness. Both the prosecutor at the trial and the appellant’s trial counsel (who were not the counsel on this appeal) flagged in their addresses to the jury that the issues of consent and honest and reasonable but mistaken belief as to consent arose for the jury’s consideration.Summary of relevant evidence Most of the evidence at the trial was adduced from the complainant. The complainant and the appellant met on 30 or 31 July 2019 through a mutual friend K. She told the appellant on that occasion she was a virgin. They communicated on social media until they met again for an evening out with friends on 27 August 2019. Count 1 arose out of events that occurred when they returned to K’s apartment after that outing on or about 28 August 2019 which the complainant said was the first occasion they had sexual intercourse. The complainant suggested that they go to bed and engage in consensual sexual activity. Both the complainant and the appellant had been drinking alcohol. (In cross-examination, the complainant conceded that by the end of the night her memory was somewhat impaired by the alcohol she had been drinking.) The complainant was agreeable to the appellant’s inserting his finger into her vagina. He then asked her whether she wanted to lose her virginity before her birthday, while she was still 18. The complainant did not say anything back and said “I don’t know if he took that as a cue”. The appellant then got up, took off his pants, got back into bed, got on top of the complainant and resumed kissing. He then inserted his penis into her. It hurt a lot and she remembered that she told him to stop about two or three times and she told him that he needed to slow down and that it was hurting. She said “he just kind of pushed it in”. The following exchange took place in evidence in chief:“How has it stopped?---So he – midway through, he got up to go put on a condom and I had thought he wa – it was over and done with. Like, I kind of had, like, propped myself up to get up and he’s come back and gotten back on top of me and then reinserted himself into me and then finished into the condom.When he’s come back with the condom, did you say anything to him?---No, I didn’t. I did tell him to stop again when he inserted – like, I said it was hurting and he said, ‘You’re just not used to it’, and that was it.” The appellant asked the complainant, if she enjoyed it, and the complainant did not respond. The complainant and the appellant went to sleep in the same bed in which the sexual intercourse had taken place. The cross-examination of the complainant in respect of count 1 elicited more detail about the incident. The complainant accepted that she and the appellant were kissing and touching each other, as they were lying on the bed and she did not have any underwear on. The following exchange took place:“Now, once you had commenced having sex, I suggest that you did at some point say, ‘Slow down.’?---Yes.But – and you also said – at some point said it was hurting?---Yes.And I suggest that when you said slow down, he would slow down?---Only briefly.But when he slowed down, you didn’t say, ‘Get off me.’?---No.You didn’t say, ‘Go away.’?---No.I suggest, in fact, that you didn’t even say ‘no’ or ‘stop’?---I did say stop.”

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 BDV [2022] QCA 219
PARTIES:	R v BDV (appellant)
FILE NO/S:	CA No 244 of 2021 DC No 203 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 2 September 2021 (Coker DCJ)
DELIVERED ON:	Date of Orders: 20 July 2022 Date of Publication of Reasons: 11 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	20 July 2022
JUDGES:	Mullins P, Bond JA and North J
ORDERS:	Date of Orders: 20 July 2022 1. Appeal allowed. 2. Set aside the convictions on counts 1, 3, 4, 5 and 6. 3. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of five counts of rape of the complainant with whom he was in a sexual relationship – where it was common ground at trial that the issues of consent and honest and reasonable but mistaken belief as to consent arose for the jury’s consideration – where the jury should have been directed to consider the evidence of the circumstances on each occasion and what could constitute consent and withdrawal of consent by reference to the evidence – where the complainant’s evidence relevant to lack of consent was also relevant to the defence of mistake of fact – where the trial judge’s direction on the defence was an abstract proposition unconnected with the direction dealing with the proof of lack of consent – whether a miscarriage of justice occurred because the jury was not adequately instructed about how the evidence related to the issues of lack of consent and mistake of fact CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of five counts of rape of the complainant with whom he was in a sexual relationship – where the trial judge gave a direction on the use of the evidence that was admitted at the trial relating to the violent conduct of the appellant – where the appellant was violent on the night prior to the complainant making the complaint to the police about the rapes and this was relevant to explain why the complaint was made – where the direction given by the trial judge was adequate in relation to this evidence – where there was other evidence of violent conduct given by the complainant and a witness – where it was not correct for the trial judge to direct the jury on this evidence when such conduct occurred after the incidents the subject of counts 1 and 3 and the complainant’s evidence on counts 4-6 did not make the appellant’s violent behaviour relevant in any way to those counts Criminal Code (Qld), s 24, s 348, s 620 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited HML v The Queen (2008) 235 CLR 334;