R v Beh

[2024] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEH [2024] QCA 56

PARTIES:

R
v
BEH
(appellant)

FILE NO/S:

CA No 257 of 2022
DC No 47 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maryborough – Date of Conviction: 25 October 2022 (Byrne KC DCJ)

DELIVERED ON:

16 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2024

JUDGES:

Mullins P and Dalton and Flanagan JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted on one count of maintaining an unlawful relationship with a child, with a circumstance of aggravation – where the defence suggested there had been collusion between the complainant and his younger brother as there were similar aspects of the two brothers’ evidence – where the appellant argued the trial judge did not give a balanced summary of the evidence relevant to the issue of collusion – whether the trial judge erred in giving directions about collusion such that a miscarriage of justice was occasioned

Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46, cited
Huxley v The Queen (2023) 98 ALJR 62; [2023] HCA 40, cited

COUNSEL:

A M Hoare KC for the appellant
C W Wallis for the respondent

SOLICITORS:

Suthers George Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I agree with Dalton JA.

2. DALTON JA:  This is an appeal against conviction on one count of maintaining an unlawful relationship with a child, with a circumstance of aggravation.  The ground of appeal is that the trial judge erred in giving directions about collusion such that a miscarriage of justice was occasioned.  The appellant’s argument is not that the trial judge did not deal with aspects of striking similarity in the evidence correctly as a matter of law, but that he did not give a balanced summary of the evidence relevant to this issue.

3. The complainant was the accused man’s nephew, and was 10 years younger than him.  The maintaining count was particularised as being over seven years.  At the start of the period the complainant was eight or nine years old; the appellant was 18 or 19.  The Crown case was that the complainant was habitually abused over the years charged.  The complainant could recall some specific events, but was not able to recall all the events.

4. The Crown case was that the offending occurred at a rural property which was owned by a family member.  When the appellant and complainant were visiting the property, the appellant would take the complainant to secluded parts of the property where the offending would take place.  The complainant remembered the first time that the appellant took him to an out-of-the-way place on the property and enquired, “Do you want to see what makes babies?”  The appellant then masturbated until he ejaculated.  The complainant recalled that at the beginning of the…