R v Bep

Case [2025] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEP [2025] QCA 91

PARTIES:

R
v
BEP
(appellant)

FILE NO/S:

CA No 125 of 2024
DC No 606 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 15 May 2024 (Loury KC DCJ)

DELIVERED ON:

3 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2025

JUDGES:

Boddice JA, Bradley and Crowley JJ

ORDERS:

1.   Application for leave to adduce new evidence refused.

2.   Appeal allowed in part.

3.   The verdict of guilty on count 1 is set aside.

4.   There be a new trial in respect of count 1.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted by jury of one count of sexual assault and one count of rape – where the appellant contends a miscarriage of justice occurred because the trial judge failed to leave to the jury whether the Crown had excluded a defence that the appellant had acted under a mistake of fact, under s 24 of the Criminal Code, in respect of each offence – where the trial judge misstated the defence case in relation to count 1 – whether the trial judge’s reference to the appellant not disputing that he kissed the complainant’s pelvic region amounted to a miscarriage of justice in that the jury might reasonably have acquitted the appellant, had the misstatement not been made – whether the misstatement of the appellant’s case in the summing up could also have affected the jury’s deliberation to a verdict of guilty, in respect of count 2

APPEAL AND NEW TRIAL – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where the appellant seeks to adduce “new evidence” – where the evidence was contained in the complainant’s police statement dated 7 October 2021 – where the evidence was disclosed and available to the appellant at trial – whether a miscarriage of justice would occur if the conviction was allowed to stand in light of the “new evidence” – whether there is a significant possibility that a jury hearing the “new evidence” would have reached a different verdict

Criminal Code (Qld), s 24, 349, s 352

Brawn v The King [2025] HCA 20, cited
Gregory v The Queen (1983) 151 CLR 566; [1983] HCA 24, cited
HCF v The Queen (2023) 97 ALJR 978; (2023) 415 ALR 190; [2023] HCA 35, cited
R v Hodges [2019] 1 Qd R 172; [2018] QCA 92, followed
R v Kalisa[2024] QCA 198, cited
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited

COUNSEL:

J B Horne, with K McArthur, for the appellant
D Kovac for the respondent

SOLICITORS:

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

  1. BODDICE JA:  I have had the advantage of reading the reasons of…

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Details
AGLC
R v Bep [2025] QCA 91
Case
[2025] QCA 91
Decision Date

CaseChat Overview and Summary

The case of R v Bep involves the appellant, who was convicted by a jury of one count of sexual assault and one count of rape. The appellant appealed against the conviction, arguing that a miscarriage of justice occurred because the trial judge failed to leave to the jury whether the Crown had excluded a defence that the appellant had acted under a mistake of fact, under s 24 of the Criminal Code, in respect of each offence. The appellant also contended that a miscarriage of justice occurred due to the trial judge's misstatement of the defence case in relation to count 1, specifically regarding the appellant's alleged kissing of the complainant's pelvic region. Additionally, the appellant sought to adduce further evidence, which was contained in the complainant's police statement dated 7 October 2021, arguing that it was "new evidence" that had not been disclosed at trial.

The court examined the legal issues surrounding whether the trial judge's misstatement of the appellant's position on count 1 could have influenced the jury's verdict on count 2. The court concluded that it was not reasonably possible that the misstatement could have led the jury to a different conclusion on count 2. The court also considered the second ground of appeal, which was that a miscarriage of justice occurred because the trial judge failed to leave to the jury the issue of whether the Crown had excluded the defence of mistake of fact. The court held that the appellant must show that there was evidence on which the jury could have legitimately entertained a reasonable doubt about whether the appellant honestly and reasonably believed that the complainant had consented to the sexual activity. However, the court found that the appellant had not established this ground of appeal.

The court determined that the trial judge's reference to the appellant not disputing that he kissed the complainant's pelvic region might have affected the verdict, leading to a miscarriage of justice. The court concluded that the appellant's conviction on count 1 should be set aside and a new trial ordered. The court rejected the appellant's application to adduce new evidence as it was not fresh evidence in the legal sense and did not demonstrate a significant possibility that a jury hearing the new evidence would have reached a different verdict.

In summary, the court allowed the appeal in part, set aside the verdict of guilty on count 1, and ordered a new trial in respect of count 1. The court refused the application for leave to adduce new evidence.

Orders

Orders of the court

1. Application for leave to adduce new evidence refused.

2. Appeal allowed in part.

3. The verdict of guilty on count 1 is set aside.

4. There be a new trial in respect of count 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant failed to establish ground 2 of the appeal.New evidence The further evidence the appellant seeks to adduce on appeal is “new evidence”. It was contained in the complainant’s police statement dated 7 October 2021. That statement had been disclosed to the appellant and was available at trial. The Court has a residual discretion in exceptional cases to receive further evidence, which is not fresh evidence in the legal sense, where to refuse to do so would result in a miscarriage of justice.[8] A miscarriage of justice would occur if it would be unsound or unsatisfactory to allow the conviction to stand in light of the further evidence.[9] The appellant must show there is significant possibility that a jury hearing the new evidence would have reached a different verdict.[10] That is not demonstrated in this case.[8]R v Spina [2012] QCA 179 at [33].[9]R v Hodges [2019] 1 Qd R 172 at [21], summarising the relevant principles derived from Ratten v The Queen (1974) 131 CLR 510 and Lawless v The Queen (1979) 142 CLR 659.[10]R v Hodges [2019] 1 Qd R 172 at [22], citing R v HBR [2017] QCA 193 at [83]. For the appellant, it was submitted that two paragraphs in the statement might have caused the jury to doubt the complainant’s evidence. It is convenient to consider each in turn. The first was that the appellant:“told me to take my jumper and shirt off, but he was taking them off as he was saying it. He took off all my tops in one motion. He was trying to take my bra off, but was unable to take my bra off so he told me too [sic], which I did.” The complainant did not give evidence about this at the trial. The appellant’s defence counsel did not put it to her in cross-examination. The appellant gave evidence at the trial that:“We began becoming more intimate – so kissing around the neck, and then she took off her tops and left her bra on. I then asked for her to remove her bra, which she did.” The second paragraph in the statement was that the appellant:“then started to aggressively thrust into me. I jolted my head back and was able to move his hand off my mouth, I said to him ‘You're being too loud.’ As he was loudly clapping against me, you could hear our skin. He continued to thrust into me for about 1 minute and moved his right hand onto my left boob and was aggressively squeezing and grabbing at it.” In her evidence in chief, the complainant told the jury she did not remember what she said (after telling the appellant “I don’t want to do this anymore”). She said that the appellant “put his hand over my mouth” and told her to “shut up.” She said he was “squeezing and grabbing [her left breast] quite aggressively” while “still thrusting still very forcefully and aggressively as well.” She told the jury she “was able to grab his hand off my mouth.” In cross-examination, the defence counsel put to the complainant that, when the appellant first put his penis in her vagina, she had said to him “We have to be quiet.” The complainant had denied this. Defence counsel then put that the complainant had not said “I don’t want to do this anymore”, but had instead said, “We’re being too loud.” The complainant rejected this, saying she had told the appellant, “I don’t want to do this anymore.” She also rejected the proposition that she had said, “Stop. I don’t want to do this because you’re being too loud.”

Decision

Reasons for decision

I reject the appellant’s contrary characterisations of the trial judge’s error. In the circumstances, it was not reasonably possible that the misstatement of the appellant’s position on count 1 may have led the jury to a different conclusion on count 2 in the way contended for the appellant.Conclusion of ground 1 It follows that the appellant’s conviction on count 1 should be set aside and a new trial ordered.Second ground – mistake defence The second ground of appeal is that a miscarriage of justice occurred because the trial judge failed to leave to the jury whether the Crown had excluded a defence that the appellant had acted under a mistake of fact, under s 24 of the Criminal Code, in respect of each offence. A further submission put for the appellant at the appeal hearing was that the complainant’s express statements that she wanted him to stop sexual intercourse were evidence that raised for determination whether the appellant was under an honest and reasonable mistake about her consenting when he began and continued penetrating her vagina with his penis. At the hearing of the appeal, the appellant’s counsel also submitted that if the jury had reached an “intermediate version of the evidence of the complainant and the appellant” there might have been a basis for raising the issue of mistake.Consideration of the submissions on mistake Given the above conclusion on ground 1, the following consideration is focussed on count 2. The appellant must show that there was evidence at the trial, viewed fairly or realistically, on which the jury could have legitimately entertained a reasonable doubt about whether, although mistaken, the appellant honestly and reasonably believed that the complainant had consented to him penetrating her vagina with his penis.[7][7]R v Kalisa [2024] QCA 198 at [4] The appellant and the complainant were not in an intimate relationship. The appellant said this was the first time that he had slept together with the complainant in the same space. Asked about any prior physical intimacy, the appellant described “a kiss on the cheek and a hug” when she came to his workplace as an example. He added an outdoors kiss on the lips, after a lunch and ice cream on a date, as the only other example. During cross-examination, the appellant’s evidence was that he penetrated her vagina with his penis immediately or shortly after the complainant had told him she did not want him to perform oral sex. He did not say anything to the complainant before penetration. He did not discuss with the complainant the use of any protection. He did not use any protection. He said, while he was having sexual intercourse, the complainant said, “I don’t want to do this anymore.” The appellant told the jury he said nothing in response. He said he kept having sex with her. The appellant told the jury the complainant’s “reluctance” to have oral sex meant that the complainant was open to sexual penetration. When asked what gave him the impression that the complainant wanted to have penetrative sex, the appellant said it was because “she was stroking my penis” on the outside of his underwear. This had not been put to the complainant in cross-examination. The appellant had not mentioned any stroking in his evidence in chief. It had not been opened by defence counsel. For the appellant, it was also submitted that his evidence that the complainant had removed her bra at his request was “an act which signifies consent to the activity that was then occurring” and “so a development of sexual activity that might have indicated” to the appellant “that she was willing to engage” in penile penetration.

Ratio Decidendi

Legal Principle Established

Early in their deliberations, the jury asked for a transcript of the cross-examination of the appellant. The trial judge, after seeking counsel’s views, sent the jury two copies of the appellant’s evidence in chief, his cross-examination, and his re-examination. The jury then asked for a transcript of the complainant’s evidence. After seeking counsel’s views, the trial judge sent the jury two copies of the complainant’s evidence in chief, cross-examination, and re-examination.Consideration of ground 1 There will have been a miscarriage of justice if it is reasonably possible that the trial judge’s reference to the appellant not disputing that he kissed the complainant’s pelvic region may have affected the verdict so that the jury might reasonably have acquitted the appellant, had the misstatement not been made.[5] The appellant carried the onus to establish that this error could have influenced the verdict in that way.[5]Simic v The Queen (1980) 144 CLR 319 at 332. The Crown submitted that, reviewing the whole of the appellant’s evidence at the trial, the appellant had not disputed that he attempted to perform oral sex and had agreed that he was “down there” when the complainant told him she did not want him to do that. It is possible to read the appellant’s evidence in that way. The Crown also submitted that the appellant’s defence counsel had not put to the complainant that the appellant did not kiss her pelvic region. In the relevant exchange, extracted at [19] above, defence counsel had put only that the appellant stopped trying to perform oral sex. At the trial, in examining the complainant and the appellant, both counsel had referred variously to the appellant trying to perform oral sex, going down, and kissing the complainant in the pelvic region, the pelvic area, the vagina area, and the pubic bone area, as if these expressions were interchangeable. There were no other particulars of count 1 beyond those in [9] above, which only referred to the complainant’s pelvic region. As there was no explanation of what was meant by the complainant’s pelvic region, this left the evidence somewhat indistinct as to what the complainant and the appellant respectively said had happened. It also left unexplained the relationship between that evidence and the offence particularised in count 1. When the complainant and the appellant were asked and gave evidence about the appellant having kissed the complainant on the “stomach”, this could have been within the pelvic region. A possible inference from the evidence of the complainant and the appellant is that both understood that by the words “I don’t want you to do that”, the complainant had indicated to the appellant that she did not wish the appellant to perform oral sex. This seems to have been more specific conduct than the particulars of count 1. A lack of clarity was most apparent concerning evidence about what was said to have happened before the complainant had made known to the appellant her objection to oral sex. However, consistently with the evidence of both the complainant and the appellant, in the closing address the Crown had not alleged that the appellant had committed the alleged sexual assault (i.e. kissed the complainant’s pelvic area without her consent) before the complainant had voiced her objection to oral sex.