R v Bee

Case [2023] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEE [2023] QCA 261

PARTIES:

R
v
BEE
(appellant)

FILE NO/S:

CA No 136 of 2023
DC No 352 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 24 July 2023 (Jackson KC DCJ)

DELIVERED ON:

19 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2023

JUDGES:

Morrison and Dalton and Boddice JJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – TENDENCY, CO-INCIDENCE AND PROPENSITY – SIMILAR FACT EVIDENCE – where the appellant was convicted by jury of one count of maintaining a sexual relationship with a child (count 1), one count of carnal knowledge with a child under 16 (count 2), one count of indecent treatment of a child under 16 (count 3) and one count of rape (count 4) – where the appellant was found not guilty of a further count of indecent treatment of a child under 16 (count 5) – where counts 1 to 4 concerned the first complainant, and count 5 concerned the second complainant – where the complainants were sisters – where the complainants’ evidence was admitted on a similar fact basis – where defence used the evidence forensically to contend the complainants had concocted the complaints against the appellant – where, unlike the first complainant, the second complainant’s evidence contained no allegations of penetrative acts – where there was, however, a strong degree of similarity in the evidence of the complainants as to the initiation of their interactions with the appellant and their content, prior to sexual contact – where the appellant submits there was no striking similarity in respect of the evidence of each complainant – where, ancillary to that submission, the appellant takes issue with the failure to make a severance application and alleged inadequacy of directions given in respect of the similar fact evidence – whether a miscarriage of justice was occasioned by reason of the way the similar fact evidence was advanced at trial

CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – STATEMENTS – where the appellant participated in a pre-text call with one of the complainants and sent her messages via Instagram – where those statements were initially used as statements against interest – where the trial judge directed the jury they could use such evidence as statements against interest if satisfied as to their truth and accuracy – where the jury were not directed they ought to be satisfied of such beyond reasonable doubt – where the appellant submits those statements were used as admissions, thereby requiring the trial judge to direct the jury that they be satisfied of their truth and accuracy ‘beyond reasonable doubt’ – where there was no challenge as to the maker of the statements or as to their having been made – whether the trial judge erred in the directions given

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the…

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AGLC
R v Bee [2023] QCA 261
Case
[2023] QCA 261
Decision Date

CaseChat Overview and Summary

The appellant appealed his conviction for several counts of sexual offences against two complainants, sisters, over a period from 2010 to 2013. The appellant was found guilty of maintaining a sexual relationship with one complainant (Count 1), carnal knowledge with a child under 16 (Count 2), indecent treatment of a child under 16 (Count 3), and rape (Count 4). He was acquitted of indecent treatment of the second complainant (Count 5). The appeal was based on three grounds: the handling of "similar fact" evidence at trial, the trial judge's directions regarding statements made during a pre-text call and via Instagram, and the reasonableness of the jury's verdict on Count 4 (rape).

The legal issues before the court were whether the evidence of each complainant was sufficiently similar to justify its admission on a "similar fact" basis, whether the trial judge correctly directed the jury on the use of the pre-text call and Instagram statements, and whether the jury's verdict on Count 4 (rape) was unreasonable or unsupported by the evidence. The court examined the evidence to determine if there was a striking similarity that would justify the admission of similar fact evidence. It also considered whether the trial judge's directions regarding the pre-text call and Instagram statements were adequate and whether the jury's verdict on Count 4 was reasonable.

The court found that the evidence of the two complainants shared a strong degree of similarity in the initiation of interactions with the appellant and their content prior to sexual contact, which justified its admission. The court also determined that the trial judge's directions on the pre-text call and Instagram statements were sufficient, as the appellant did not challenge the authenticity of the statements. Finally, the court concluded that the jury's verdict on Count 4 was reasonable, as the evidence supported the conclusion that the appellant's act was non-consensual.

The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The appellant appeals his conviction.[1] He relies on three grounds. First, a miscarriage of justice because of the way in which “similar fact” evidence was dealt with at trial. Second, a miscarriage of justice because of the trial judge’s directions about “admissions” in a pre-text call and Instagram messages. Third, the verdict on the count of rape was unreasonable and cannot be supported having regard to the evidence.[1]At the hearing of the appeal, an application for leave to appeal against sentence was abandoned by the appellant.Background The maintaining count was committed between January 2010 and December 2012. The remaining offences, other than the offence of rape, were committed between January 2010 and December 2010, when the female complainant (A) was aged 13 to 14 years. The count of rape was committed against A between December 2012 and December 2013, after she had turned 16 years of age. The count on which the jury returned a verdict of not guilty was alleged to have been committed between January 2010 and October 2010, in respect of a separate female complainant (B), the older sister of A. The appellant knew A and her family through the local sporting club. He was aged 22 and 23 at the time of the commission of the offences other than rape, and between 25 and 26 at the time of the commission of the rape.Counts Count 1 was particularised as maintaining an unlawful sexual relationship with A, by committing more than one sexual act against her, including any one or all of:(a)touching A’s vaginal area with his hand or hands;(b)penetrating A’s vagina with his finger/s;(c)penetrating A’s vagina with his penis;(d)penetrating A’s mouth with his penis;(e)kissing A’s mouth;(f)one or more of the acts constituting counts 2 and 3. That type of conduct occurred when the appellant slept at the family home, approximately every three weeks when the complainant was between 13 and 15 years of age. On one occasion, it occurred at the appellant’s house. Count 2 was particularised as the appellant having penetrated A’s vagina with his penis, in the spare room of her home, when the complainant was under 16 years. Count 3 was particularised as the appellant having penetrated A’s mouth with his penis, in the spare room of her home. Count 4 was particularised as having penetrated A’s vagina with his penis without her consent, in her bedroom, after A had turned 16 years of age. Count 5, the count of which the appellant was acquitted, was particularised as touching B’s vaginal area with his hand and/or fingers.Trial All counts were contained on one indictment. There was no application for severance of the counts involving the separate complainants. Further, no application was made to exclude B’s evidence from consideration by the jury, in determining the counts involving A. At trial, the Crown contended the evidence in respect of each complainant was admissible on the grounds it was strikingly similar, relevant to negating any suggestion of coincidence. It was not contended by the Crown that the evidence was admissible on any other basis.

Evidence

Evidence Before The Court

At trial, defence used the evidence forensically to contend the complainants had concocted the complaints against the appellant.EvidenceComplainant B B first met the appellant when she was 14 or 15 years of age. At that time, she was living with her family. She had an older brother and a sister, A, who was two years younger. The family home, located on acreage, was two-storeyed with the family bedrooms upstairs and a guest bedroom downstairs. B said the appellant played sport with her father and brother. When she first met him in 2009 or 2010, the appellant was around 23 years of age. B described the sporting club as big drinkers. Social gatherings were held at her home every week and at other people’s homes three or four times a month. B and her family would attend those gatherings, as would the appellant. B said the appellant would stay at their house almost every Friday or Saturday. It commenced around the start of 2010. After B turned 16, it was less frequent, but still regular. The appellant would sleep in the guest bedroom downstairs. He would leave very early the next morning. B said the appellant was a really close friend; someone who really cared about her. The appellant was always telling her how much he liked B. They would communicate over Facebook Messenger almost every day during 2010. He introduced her to an alcoholic liqueur called Midori. Whilst in the presence of her parents, they did not talk much, but the appellant would message her later to ask her to come down to his room. He would say, “I can’t wait to cuddle you” and “You look so beautiful”. The appellant would also help her with her assignments and when she was having trouble with her family. B said she went down to his room many times. The appellant would tell her to lie down beside him. He kissed her on about five occasions. She first went down to his room when she was aged 15 years. When they would watch movies in the cinema room of her home, the appellant would want to hold her hand under a blanket. He would also hold her thigh a lot. On one occasion, the appellant put his hand onto her vagina, on the outside of her track pants. The appellant moved his fingers up and down her vagina. After 15 to 20 seconds, B went to the bathroom. When she returned, the appellant tried to put his hand back, but B grabbed his hand and held it. This happened when she was 15. B said she did not want the appellant to touch her vagina. Not long after this night, B asked the appellant to go for a walk. She told him she just wanted to stay friends and did not want to do “that kind of stuff with him”. The appellant said, “I knew you would do this to me. I knew you were just going to break my heart, and you’re just leading me on …”. This conversation took place when she was 15. After this conversation their relationship changed; the appellant would still message B every now and then, but it was very bland and not as persistent. On one occasion, B said she went to the appellant’s house for a couple of minutes when they were driving to the sporting club. She also attended a big party there on Australia Day, in either 2009 or 2010.

Decision

Reasons for decision

The verdict of the jury in respect of count 4 was not unreasonable.Conclusion There was no miscarriage of justice and the verdict of the jury in respect of count 4 was not unreasonable.Orders I would order:1. The appeal be dismissed.

Ratio Decidendi

Legal Principle Established

In cross-examination, Dr Black said he first diagnosed the appellant with the condition in January 2015. His situation in 2018 was a fairly profound loss in the right ear. There was no probability of his hearing improving spontaneously.ConsiderationGround 1 The appellant submits that as the evidence of each complainant was admitted on the basis of a coincidence, not tendency, there was a need for striking similarity. However, there was no striking similarity. It is submitted the counts in respect of A and B were not strikingly similar and nor were their circumstances. There is no doubt that the evidence of each complainant was admitted on the basis of the coincidence of the circumstances of the offending against each complainant, rather than tendency. As such, there must be “‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”.[2][2]Pfennig v The Queen (1995) 182 CLR 461, 482. As was observed by Henry J in R v CDA (Mullins P and Bond JA concurring):[3]“… in considering the objective improbability of some event having occurred other than as asserted by the prosecution it will not be enough, as it is under iterations of uniform evidence legislation in some other Australian jurisdictions, that the coincidence or combination of circumstances relied upon merely has ‘significant probative value’. Rather, it must involve features of such a strong degree of similarity, distinctiveness, underlying unity or connection that their probative force compels the conclusion there is no reasonable view of them consistent with the innocence of the accused.” (citations omitted)[3][2022] QCA 258, [60]. Unlike A’s evidence, B’s evidence contained no allegations of penetrative acts. However, there was a strong degree of similarity, or underlying unity, in the evidence of A and B as to the initiation of their interactions with the appellant and their content, prior to sexual contact. That strong degree of similarity and underlying unity included the method of arranging their presence in his room, the provision of comfort and friendship to discuss problems, cuddling and the initial touching in a sexual way whilst under a blanket. The similarity in that conduct was of such degree as to provide a strong underlying unity or connection to their evidence, such that its probative force, if accepted by the jury, compelled a conclusion that there was no reasonable view of that conduct consistent with the appellant’s innocence. B’s evidence, and vice versa A’s evidence, had the requisite probative force to compel the conclusion there was no reasonable view of those events consistent with the appellant’s innocence. This conclusion is not altered by a consideration of the differing and more serious nature of the appellant’s offending against A. The fact that the offending in respect of B ceased after one incident, after she spoke to the appellant, did not detract from the distinctiveness and unity of their evidence. This is particularly so when the defence made a forensic decision to positively assert collusion.