R v BEA

Case [2023] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEA [2023] QCA 78

PARTIES:

R
v
BEA
(appellant/applicant)

FILE NO/S:

CA No 138 of 2021
CA No 159 of 2021
DC No 217 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 20 May 2021; Date of Sentence: 14 June 2021 (Lynham DCJ)

DELIVERED ON:

26 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2023

JUDGES:

Dalton JA and Gotterson AJA and Bradley J

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted after trial of two counts of assault occasioning bodily harm, three counts of common assault, and 13 counts of rape against a single complainant – where the prosecution case rested on the uncorroborated evidence of the complainant – where there were inconsistencies between the complainant’s evidence at trial and the preliminary complaint evidence of other witnesses – where there were inconsistencies between the complainant’s evidence at trial and admissions made by the Crown – where there was a delay of nearly three years between the last of the offending and the complainant’s first complaint to police – where the appellant alleges that the complainant had been diagnosed with borderline personality disorder and bipolar disorder – where the appellant alleges that it was never proved that the complainant did not suffer delusions as a result – whether the primary judge should have warned the jury that it was dangerous to convict on the uncorroborated evidence of the complainant – whether the primary judge should have warned the jury that the appellant had suffered a significant forensic disadvantage due to delay

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the prosecution case rested on the uncorroborated evidence of the complainant – where there were inconsistencies between the complainant’s evidence at trial and the preliminary complaint evidence of other witnesses – where the appellant alleges that the complainant was delusional due to mental health issues – whether the jury’s verdict was unsafe and unsatisfactory

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where, in the course of being cross-examined, the complainant gave evidence that the appellant had been to prison – where defence counsel used this evidence for forensic purposes – where the primary judge directed the jury as to the purposes for which it could use this evidence – whether the admission of the evidence occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – where the appellant’s counsel at trial referred…

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AGLC
R v BEA [2023] QCA 78
Case
[2023] QCA 78
Decision Date

CaseChat Overview and Summary

The appellant, BEA, appealed against his convictions and sentence. He was convicted of two counts of assault occasioning bodily harm, three counts of common assault, and 13 counts of rape against a single complainant. The prosecution case was based on the complainant's uncorroborated evidence, which the appellant argued was inconsistent and improbable. He submitted that the trial judge should have warned the jury about the dangers of convicting on uncorroborated evidence. The appellant also argued that the delay in reporting the offences and the complainant's mental health issues should have warranted a warning to the jury about potential unreliability of her evidence. He further alleged a miscarriage of justice due to certain comments made by defence counsel during cross-examination and the admission of evidence about the appellant's prior imprisonment. Finally, the appellant argued that his 11-year sentence was manifestly excessive compared to sentences given to other offenders with similar but less severe crimes.

The court held that the complainant's evidence was not improbable or incredible, and no warning was necessary on that basis. The court found that the trial judge properly directed the jury to consider inconsistencies in the complainant's evidence and assess her credibility. The court concluded that the inconsistencies did not render the verdict unsafe or unsatisfactory. The court found no miscarriage of justice in the comments made by defence counsel or the admission of evidence about the appellant's prior imprisonment. Finally, the court found that the appellant's extensive criminal history and the protracted and controlling nature of his offending justified the trial judge's sentence. The comparison to other cases did not indicate that the sentence was manifestly excessive.

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

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant raises several grounds of appeal against his convictions.The complainant’s evidence at the trial The appellant says the jury verdicts are unsafe and unsatisfactory because it is unlikely the jury could have found him guilty of many of the offences beyond a reasonable doubt on the complainant’s evidence, which, he says, was uncorroborated and “inconsistent, improbable, incredible, even sometimes farcical”. The appellant submits that the trial judge should have given the jury a direction about “the hazards involved when deciding to convict a person” on the uncorroborated evidence of a complainant. The appellant cited the decision in R v M.[1] That decision was made before the amendments of s 632 of the Criminal Code (Qld). The amendments substantially abrogated the former common law rule of practice that required a trial judge to warn the jury that it is dangerous to convict on the uncorroborated testimony of the complainant in the case of rape and other sexual offences.[1][1995] 1 Qd R 213; [1994] QCA 7. The common law now requires a judge to warn the jury “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.”[2] In R v VM, Sofronoff P summarised the rule of practice in these words:“[T]he principle that underlies a requirement to give a warning about the dangers inherent in particular evidence at a trial is not just that the evidence might possibly be unreliable but that, without a warning, a jury might not appreciate that it might be so.”[3][2]Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, [19], quoting Longman v The Queen (1989) 168 CLR 79, 86.[3][2022] QCA 88, [36]. All of the offences were committed against the same complainant. The complainant gave evidence of each of the offences. The evidence given by the complainant at the trial was not improbable or incredible. It was not farcical. No warning was required on any such basis. There were inconsistencies between the complainant’s evidence in respect of some of the counts and the evidence of two other witnesses (Ms HR and Mr WA) who each recalled what the complainant had told them of those matters on an earlier occasion. There were also inconsistences between some of the complainant’s evidence about conduct that was not the subject of any count and the admissions made by the Crown at the trial. Discerning the impact of these inconsistencies requires some consideration of their treatment at the trial. The trial judge summed up the case and gave the jury directions over two days. On the first day, his Honour told the jury that the complainant’s credibility and reliability were “central to your deliberations and your determinations”. The trial judge then directed the jury to consider:“[H]as the witness said something different at an earlier time? A matter to be considered in assessing testimony is whether it differs from what has been said by the witness on another occasion. Obviously, the reliability of a witness who says one thing at one time and something different on another occasion about the same matter is called into question.In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it, for example, might it result from an innocent error, such as faulty recollection, or else could there be an intentional falsehood? Be aware of such discrepancies or inconsistencies and, where you find them, carefully evaluate the testimony in light of other evidence.”

Decision

Reasons for decision

At the sentencing hearing, defence counsel referred his Honour to R v Pryor[25] and R v Sollitt.[26] In each, seven years’ imprisonment was imposed for a single violent rape in the context of a domestic relationship.[25][2007] QCA 232.[26][2019] QCA 44.Decisions referenced in the appellant’s outlines In his written outline for this appeal, the appellant identifies three single judge decisions where the sentences imposed for the offending was less than the head sentence imposed on the appellant for his offending. In R v Davidson,[27] a massage therapist was sentenced to four years’ imprisonment for each of seven digital rapes and three years for each of 31 sexual assaults, in all instances against patients during treatment.[28] These sentences were to be served concurrently with each other, but cumulatively on an earlier sentence of five and a half years’ imprisonment imposed after a separate trial for similar offending against nine complainants. No other prior offences were noted. Dick DCJ remarked that the head sentence would have been about five years, but it was reduced to four years due to the effect of COVID on the offender during the time he had spent in custody.[27]Unreported, District Court of Queensland, Brisbane, Dick SC DCJ, 6 May 2021.[28]Sentences of 18 months’ imprisonment were imposed for three offences of indecent treatment of a child under 16, also to be served concurrently with the other sentences imposed that day and cumulatively with the earlier sentence. In R v Martin,[29] a 22-year-old offender pleaded guilty to more than 20 offences against his 22-year-old girlfriend over a 30-day period. These included three counts of rape, eleven counts of assault occasioning bodily harm (three while armed), two counts of choking in a domestic setting, one count of strangulation in a domestic setting, and one count of deprivation of liberty. There were also drug supply and possession counts, and three counts of wilful damage. Morzone DCJ imposed a head sentence of 10 years’ imprisonment for one of the rape counts. His Honour remarked that the sentence ought to be of the order of 12 years’ imprisonment but was reduced to ameliorate the effect of the serious violent offence declaration that was made.[29]Unreported, District Court of Queensland, Cairns, Morzone QC DCJ, 28 May 2019. The appellant also referred to R v Cregan.[30] There, North J sentenced the 47-year-old offender to eight years’ imprisonment for a malicious act with intent to cause grievous bodily harm. His Honour imposed lesser sentences for other associated offending. The offender pleaded guilty to all counts and charges. He had no prior criminal record. The principal offence involved him discharging a gun when the homeowner opened the door of the garage in which he was hiding. She suffered a minimal displaced fracture and multiple small bullet fragments in her right cheekbone. The offender continued to attack the homeowner, kicking her, and trying to pull her out from under a car, where she had gone for protection. The other serious offences included using a hammer to strike a person who came to help the homeowner, causing bodily harm.[30]Unreported, Supreme Court of Queensland, Townsville, North J, 8 April 2022.

Ratio Decidendi

Legal Principle Established

It is unsurprising that none of the decisions cited by the appellant in his outline was raised at the appellant’s sentencing hearing. In none of them could the offending be considered comparable to the appellant’s offending. As well, none of them involved an offender with a 40-year criminal record, including relevant convictions for indecent assault, aggravated indecent assault, assault occasioning bodily harm, two for common assault, and 12 for contravention of domestic violence orders (including two as aggravated offences).Consideration of the referenced decisions Comparing the criminality of different sexual offenders is an odious, if sometimes necessary, exercise. As the trial judge noted at the sentencing hearing, the decisions in Chinfat, Mason and Saunders, and Mitchell are to be treated with some caution. They predate extensive amendments to s 9 of the Penalties and Sentences Act 1992 (Qld). Since the amendments, s 9(10) requires the court to treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such given the nature of the precious conviction, its relevance to the present offence, and the time that has elapsed. Section 9(10A) requires the court to treat the fact that a conviction is for a domestic violence offence as an aggravating factor unless the court considers it is not reasonable because of the exceptional circumstances of the case. Dated as they are, the sentences in these decisions (of 9, 12, 13, and 15 years’ imprisonment) do not indicate an error in the trial judge’s sentence of 11 years’ imprisonment for the appellant. The appellant was sentenced for offences that were quite different in nature to the single opportunistic offences in Mason and Saunders, Mitchell, Pryor, Sollit, and TAQ. The appellant committed his offences over a three-year domestic relationship. It was protracted offending against a single complainant. I respectfully adopt the trial judge’s view that the concerning overall feature of the appellant’s offending is “the controlling, violent and manipulative way” he dealt with the complainant. The appellant’s sentence called for a different consideration of deterrence than the sentences in Mason and Saunders, Mitchell, Pryor, Sollit, and TAQ. The appellant was undeterred by serving nine months’ imprisonment for three contraventions of a domestic violence protection order committed in April, May, and July 2014. Between his release from custody in May 2015 and the end of the relationship in November 2015, he committed further serious offences, including two rapes. The appellant was not a young offender with no relevant criminal history, like the offender in Heckendorf. The circumstances in NT are perhaps closer to the appellant’s offending. In NT, the defendant committed seven offences over three months, being one rape, two counts of torture, two of deprivation of liberty, one assault occasioning bodily harm while armed, and one common assault. The appellant here committed 18 offences over about three years, including 13 rapes, two counts of assault occasioning bodily harm, and three counts of common assault. In NT, the effective sentence was about 10 years and five months’ imprisonment, considering the 17 months spent in presentence custody. The comparison does not indicate the trial judge erred in sentencing the appellant.