R v Behrendorff - [2022] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v Behrendorff [2022] QCA 227

PARTIES:

R
v
BEHRENDORFF, Keith Leslie
(appellant)

FILE NO/S:

CA No 218 of 2021
DC No 1464 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 1 September 2021 (Long SC DCJ)

DELIVERED ON:

Date of Orders: 7 June 2022
Date of Publication of Reasons: 17 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2022

JUDGES:

Bond JA and Boddice and Mellifont JJ

ORDERS:

Date of Orders: 7 June 2022

1.   The appeal be allowed.

2.   The verdicts of guilty of each of the counts 8, 9 and 10 be set aside.

3.   There be a new trial in respect of counts 8, 9 and 10.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of rape (count 9), one count of strangulation in a domestic setting (count 8), and one count of assault occasioning bodily harm (count 10) – where the jury acquitted the appellant of six counts of rape (counts 1-6) – where a directed verdict of not guilty was entered in respect of count 7 – where the offending occurred between November 2016 and August 2018 – whether there were substantial inconsistencies in the complainant’s account of the offending – whether those inconsistencies rendered the complainant unreliable – whether the jury could be satisfied of the appellant’s guilt beyond reasonable doubt of counts 8, 9 and 10, notwithstanding the verdicts of not guilty of the remaining counts – whether the verdicts in respect of counts 8, 9 and 10 were unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where during the trial, counsel for the appellant sought for the recording of a triple 0 call to be played to the jury – where, on tendering the triple 0 recording, the trial judge marked “the CD that has the triple zero recording as exhibit 1” – where the CD tendered as exhibit 1 contained the triple 0 recording as well as other material including Queensland Ambulance Service notes – where the Queensland Ambulance Service notes were not in evidence and prejudicial to the appellant – where the Crown subsequently handed up a new disc containing only the triple 0 recording – where that new disc was to replace the old disc – where the old disc remained on the court file – where both discs were marked as exhibit 1 – whether, as a consequence of a failure of process, highly prejudicial inadmissible evidence was rendered available to the jury – whether a miscarriage of justice occurred

Criminal Code (Qld), s 668E

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12,…

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 Behrendorff

Details

AGLC: R v Behrendorff [2022] QCA 227
Case: [2022] QCA 227
Decision Date: 7 June 2022

CaseChat Overview and Summary

The appellant appealed his convictions for one count of rape (count 9), one count of strangulation in a domestic setting (count 8), and one count of assault occasioning bodily harm (count 10). The jury acquitted the appellant of six counts of rape (counts 1-6) and a directed verdict of not guilty was entered in respect of count 7. The offences occurred between November 2016 and August 2018. The appellant argued that the jury's verdicts were unreasonable due to substantial inconsistencies in the complainant's account and that the trial miscarried due to the introduction of prejudicial inadmissible evidence. The central issue was whether the jury could have reasonably been satisfied beyond reasonable doubt of the appellant's guilt on counts 8, 9, and 10, despite the acquittals on other counts. The court found that while there were inconsistencies in the complainant's testimony, they did not render her account unreliable to the extent that the jury's verdicts were unreasonable. The court also found that the trial did not miscarry due to the introduction of the prejudicial inadmissible evidence, as the error did not prejudice the appellant's right to a fair trial. Consequently, the appeal was dismissed and the convictions were upheld.

Orders

Orders of the court

Date of Orders: 7 June 2022

1. The appeal be allowed.

2. The verdicts of guilty of each of the counts 8, 9 and 10 be set aside.

3. There be a new trial in respect of counts 8, 9 and 10.

Background

Background to the litigation

The appellant appeals his convictions. He relies on two grounds. The first ground is that the jury verdicts are unreasonable. The second ground is that the trial miscarried in that evidence was placed before the jury that was not known to the parties.Background The appellant was born in 1975. He was aged 43 at the time of the offences. The offences related to the same female complainant. The offences of which the appellant was convicted were all committed on 11 August 2018. The counts of which the appellant was acquitted were alleged to have been committed by the appellant on three separate occasions between November 2016 and January 2018.EvidenceComplainant The complainant first met the appellant in October 2016. Shortly thereafter they commenced a relationship, including a sexual relationship. They did not, however, live permanently together. The complainant estimated she would attend the appellant’s residence two to three times a week. The complainant said that on a Friday evening in December 2016, she drove to the appellant’s residence where she made dinner, although she ate alone. After consuming almost a bottle of wine, the complainant went to bed. She had earlier had consensual sexual relations with the appellant. The complainant said after she had undressed and hopped into bed, she felt a hand on her shoulder. It awoke her from “a deep sleep”. The appellant pulled her back flat and lay on top of her. He was naked. He forced his penis inside her vagina (Count 1). She did not consent to that act. The complainant asked the appellant to get off her and what he thought he was doing. The appellant replied, “I just wanted to see if you knew who was fucking you. Don’t ever fall asleep”. The complainant said she did not leave the residence that night. The appellant had told her she was not going anywhere before having a shower. She remained in bed. She pretended to sleep until the morning and then left the residence. The appellant came and laid on the bed with his clothes on after he showered that night. The complainant said she was telephoned by the appellant later that morning. He told her to “get my ass back there”. The complainant told the appellant that what he did to her last night was rape, to which the appellant replied, “That’s not fucking rape. I can have you whenever I want to have you”. The appellant asked her to come over to her residence. She said no. The complainant said she remained in a relationship with the appellant thereafter. She was “so scared”. In March 2017, on either a Friday or Saturday night, she went to the appellant’s residence. The complainant said she was really nervous. After having dinner and drinking together, the complainant told the appellant she wanted to go to bed. The complainant estimated she had consumed nearly a bottle of white wine. She had also taken two Valium tablets. She went to bed at about midnight. The complainant undressed, hopped into bed and fell asleep. She estimates she slept for a long time before awakening to find the appellant on top of her with his penis inside her vagina (Count 2). The appellant was thrusting his penis. She thought that was what woke her up. She did not consent to that act. She was yelling “Get off me. Get off me”. The appellant at one stage said, “Why aren’t you coming? Who are you fucking?”. The complainant said she was lying on her back with her arms crossed over above her head. The appellant was holding both her wrists with one hand.

Evidence

Evidence Before The Court

The offences of which the appellant was convicted were all committed on 11 August 2018. The counts of which the appellant was acquitted were alleged to have been committed by the appellant on three separate occasions between November 2016 and January 2018.EvidenceComplainant The complainant first met the appellant in October 2016. Shortly thereafter they commenced a relationship, including a sexual relationship. They did not, however, live permanently together. The complainant estimated she would attend the appellant’s residence two to three times a week. The complainant said that on a Friday evening in December 2016, she drove to the appellant’s residence where she made dinner, although she ate alone. After consuming almost a bottle of wine, the complainant went to bed. She had earlier had consensual sexual relations with the appellant. The complainant said after she had undressed and hopped into bed, she felt a hand on her shoulder. It awoke her from “a deep sleep”. The appellant pulled her back flat and lay on top of her. He was naked. He forced his penis inside her vagina (Count 1). She did not consent to that act. The complainant asked the appellant to get off her and what he thought he was doing. The appellant replied, “I just wanted to see if you knew who was fucking you. Don’t ever fall asleep”. The complainant said she did not leave the residence that night. The appellant had told her she was not going anywhere before having a shower. She remained in bed. She pretended to sleep until the morning and then left the residence. The appellant came and laid on the bed with his clothes on after he showered that night. The complainant said she was telephoned by the appellant later that morning. He told her to “get my ass back there”. The complainant told the appellant that what he did to her last night was rape, to which the appellant replied, “That’s not fucking rape. I can have you whenever I want to have you”. The appellant asked her to come over to her residence. She said no. The complainant said she remained in a relationship with the appellant thereafter. She was “so scared”. In March 2017, on either a Friday or Saturday night, she went to the appellant’s residence. The complainant said she was really nervous. After having dinner and drinking together, the complainant told the appellant she wanted to go to bed. The complainant estimated she had consumed nearly a bottle of white wine. She had also taken two Valium tablets. She went to bed at about midnight. The complainant undressed, hopped into bed and fell asleep. She estimates she slept for a long time before awakening to find the appellant on top of her with his penis inside her vagina (Count 2). The appellant was thrusting his penis. She thought that was what woke her up. She did not consent to that act. She was yelling “Get off me. Get off me”. The appellant at one stage said, “Why aren’t you coming? Who are you fucking?”. The complainant said she was lying on her back with her arms crossed over above her head. The appellant was holding both her wrists with one hand.

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 Behrendorff [2022] QCA 227
PARTIES:	R v BEHRENDORFF, Keith Leslie (appellant)
FILE NO/S:	CA No 218 of 2021 DC No 1464 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 1 September 2021 (Long SC DCJ)
DELIVERED ON:	Date of Orders: 7 June 2022 Date of Publication of Reasons: 17 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2022
JUDGES:	Bond JA and Boddice and Mellifont JJ
ORDERS:	Date of Orders: 7 June 2022 1. The appeal be allowed. 2. The verdicts of guilty of each of the counts 8, 9 and 10 be set aside. 3. There be a new trial in respect of counts 8, 9 and 10.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of rape (count 9), one count of strangulation in a domestic setting (count 8), and one count of assault occasioning bodily harm (count 10) – where the jury acquitted the appellant of six counts of rape (counts 1-6) – where a directed verdict of not guilty was entered in respect of count 7 – where the offending occurred between November 2016 and August 2018 – whether there were substantial inconsistencies in the complainant’s account of the offending – whether those inconsistencies rendered the complainant unreliable – whether the jury could be satisfied of the appellant’s guilt beyond reasonable doubt of counts 8, 9 and 10, notwithstanding the verdicts of not guilty of the remaining counts – whether the verdicts in respect of counts 8, 9 and 10 were unreasonable CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where during the trial, counsel for the appellant sought for the recording of a triple 0 call to be played to the jury – where, on tendering the triple 0 recording, the trial judge marked “the CD that has the triple zero recording as exhibit 1” – where the CD tendered as exhibit 1 contained the triple 0 recording as well as other material including Queensland Ambulance Service notes – where the Queensland Ambulance Service notes were not in evidence and prejudicial to the appellant – where the Crown subsequently handed up a new disc containing only the triple 0 recording – where that new disc was to replace the old disc – where the old disc remained on the court file – where both discs were marked as exhibit 1 – whether, as a consequence of a failure of process, highly prejudicial inadmissible evidence was rendered available to the jury – whether a miscarriage of justice occurred Criminal Code (Qld), s 668E Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12,…