R v Bei - [2024] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEI [2024] QCA 71

PARTIES:

R
v
BEI
(appellant)

FILE NO/S:

CA No 126 of 2023
DC No 19 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 14 July 2023 (Cash KC DCJ)

DELIVERED ON:

3 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2024

JUDGES:

Bond and Boddice JJA and Fraser AJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted on 6 out of 9 counts in respect of his former partner and her children – where the appellant contends that the jury rightfully held a doubt as to the complainant’s credibility on count 1, and that the trial judge should have directed them take this into account when deliberating on the remaining counts in respect of that complainant – where, during the trial, defence counsel and prosecution discussed with the trial judge whether a Markuleski direction should be given – where the appellant contends that the trial judge determined not to give the direction on the footing that it was not applicable to offences which are not sexual offences – whether the trial judge erred in deciding not to give a Markuleski direction – whether the trial judge’s decision not to give a Markuleski direction occasioned a miscarriage of justice

Criminal Code (Qld), s 668E(1)

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, considered
R v Ford[2006] QCA 142, applied
Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59, applied
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v LR [2006] 1 Qd R 435; [2005] QCA 368, applied
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, applied
R v WAC[2008] QCA 151, cited

COUNSEL:

M J Copley KC for the appellant
S L Dennis for the respondent

SOLICITORS:

Lumme Rynderman Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: I agree with the reasons for judgment of Fraser AJA and the order proposed by his Honour.
BODDICE JA: I agree with Fraser AJA that the appeal should be dismissed.
Fraser AJA’s comprehensive analysis of the counts, evidence, addresses and summing up, allows me to briefly state my reasons.
First, a consideration of the contents of the interaction between the trial judge and counsel, in the context of whether the trial judge should give a Markuleski direction, supports a conclusion that whilst the trial judge did refer to such a direction being limited to cases charging sexual offending, the decision not to give the direction was ultimately…

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 Bei

Details

AGLC: R v Bei [2024] QCA 71
Case: [2024] QCA 71
Decision Date: 3 May 2024

CaseChat Overview and Summary

The appellant was convicted on six out of nine counts related to his former partner and her children. He appealed against his conviction, arguing that the jury should have had a doubt about the credibility of the complainant on count 1, and that this doubt should have been taken into account when deliberating on the remaining counts involving that complainant. The appellant argued that the trial judge should have directed the jury to consider this doubt, but did not do so. The defence counsel and prosecution had discussed with the trial judge whether a Markuleski direction should be given, but the trial judge decided against it, on the basis that it was not applicable to offences that were not sexual in nature. The appellant argued that the trial judge's decision not to give a Markuleski direction led to a miscarriage of justice.

The court was required to decide whether the trial judge erred in deciding not to give a Markuleski direction, and whether this error led to a miscarriage of justice. The court noted that a Markuleski direction is typically given in cases involving multiple sexual offences, to ensure that the jury does not treat a finding of guilt on one count as necessarily establishing guilt on other counts. However, the court held that the trial judge did not err in deciding not to give a Markuleski direction, as the offences in this case were not sexual in nature. The court held that the trial judge's decision not to give a Markuleski direction did not occasion a miscarriage of justice, as the evidence against the appellant was overwhelming, and the jury was properly directed on the issue of the complainant's credibility.

The appeal was dismissed. The court held that the trial judge did not err in deciding not to give a Markuleski direction, and that this decision did not occasion a miscarriage of justice. The appellant's conviction was therefore upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BEI [2024] QCA 71
PARTIES:	R v BEI (appellant)
FILE NO/S:	CA No 126 of 2023 DC No 19 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 14 July 2023 (Cash KC DCJ)
DELIVERED ON:	3 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2024
JUDGES:	Bond and Boddice JJA and Fraser AJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted on 6 out of 9 counts in respect of his former partner and her children – where the appellant contends that the jury rightfully held a doubt as to the complainant’s credibility on count 1, and that the trial judge should have directed them take this into account when deliberating on the remaining counts in respect of that complainant – where, during the trial, defence counsel and prosecution discussed with the trial judge whether a Markuleski direction should be given – where the appellant contends that the trial judge determined not to give the direction on the footing that it was not applicable to offences which are not sexual offences – whether the trial judge erred in deciding not to give a Markuleski direction – whether the trial judge’s decision not to give a Markuleski direction occasioned a miscarriage of justice Criminal Code (Qld), s 668E(1) Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, considered R v Ford[2006] QCA 142, applied Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59, applied KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v LR [2006] 1 Qd R 435; [2005] QCA 368, applied R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, applied R v WAC[2008] QCA 151, cited
COUNSEL:	M J Copley KC for the appellant S L Dennis for the respondent
SOLICITORS:	Lumme Rynderman Legal for the appellant Director of Public Prosecutions (Queensland) for the respondent