R v Bryce - [2021] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bryce [2021] QCA 145

PARTIES:

R
v
BRYCE, Tamara Renita
(appellant)

FILE NO/S:

CA No 77 of 2020
DC No 64 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 9 March 2020 (McGinness DCJ)

DELIVERED ON:

20 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2021

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of three counts of indecent dealing of a child under 16 and one count of unlawful carnal knowledge with a child – where police questioned the complainant prior to him disclosing the offending to his friends and his parents – where the complainant made no disclosure of any offending to the police in the first interview – whether evidence of the complainant’s disclosures to his friends and parents were admissible as ‘preliminary complaints’ under s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) –whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the prosecution and defence agreed to redact passages of the appellant’s record of police interview – where an unredacted record of the police interview was inadvertently provided to the jury – where the trial judge refused an application made by defence counsel for the jury to be discharged – whether the inclusion of the record of interview was prejudicial to the appellant – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of unlawful carnal knowledge with a child – whether it was open to the jury to convict on the evidence

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
R v DBA (2012) 219 A Crim R 408; [2012] QCA 49, considered

COUNSEL:

J Crawford for the appellant
C N Marco for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
MORRISON JA: I agree with the reasons of McMurdo JA and the proposed order.
McMURDO JA: The appellant was convicted by a jury of four sexual offences, committed against a 13 year old boy. There were three offences of indecent dealing, and one offence of unlawful carnal knowledge with the complainant.
The appellant appeals against each conviction upon two grounds, and, upon a further ground, against the conviction for the offence of unlawful carnal…

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 Bryce

Details

AGLC: R v Bryce [2021] QCA 145
Case: [2021] QCA 145
Decision Date: 20 July 2021

CaseChat Overview and Summary

The appellant in this case has appealed against his convictions of three counts of indecent dealings with a child under 16 and one count of unlawful carnal knowledge with a child. The appeal was heard in the Court of Appeal, where the appellant argued that there had been a miscarriage of justice due to the improper admission or rejection of evidence, and that the verdict was unreasonable or insupportable having regard to the evidence. The appeal was dismissed by the Court of Appeal.

The legal issues before the Court of Appeal were whether the evidence of the complainant’s disclosures to his friends and parents were admissible as ‘preliminary complaints’ under s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld), and whether the inclusion of an unredacted record of the police interview was prejudicial to the appellant. The Court of Appeal also had to determine whether the verdict was unreasonable or insupportable having regard to the evidence.

The Court of Appeal found that there was no miscarriage of justice in the trial, and that the evidence was properly admitted. The Court of Appeal held that the evidence of the complainant’s disclosures to his friends and parents was admissible as ‘preliminary complaints’ under s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld), and that the inclusion of the unredacted record of the police interview was not prejudicial to the appellant. The Court of Appeal also held that it was open to the jury to convict the appellant on the evidence. The appeal was dismissed, and the convictions were upheld.

No further orders were made by the Court of Appeal.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant appeals against each conviction upon two grounds, and, upon a further ground, against the conviction for the offence of unlawful carnal knowledge.The evidence at the trial The appellant and the complainant’s mother had been friends for some years prior to the events in question. The two women had met through a single mother’s Facebook group, and they had children of around the same age. Both families had a child with special needs; the complainant has Asperger’s syndrome. At a point in time when the complainant’s relationship with his mother was deteriorating, he decided to move to the appellant’s house. He lived with her from 22 February to 18 March 2017. He refused his mother’s requests to return home during this period, and resisted attempts by his maternal grandmother to persuade him to move to her house. The complainant’s mother became desperate for her son to return home after hearing that he had shared the appellant’s bed. She then contacted the police who took no action at the time. When the complainant’s father found out that his son was no longer living with his mother, he too went to see the complainant at the appellant’s house and unsuccessfully tried to persuade him to leave. A couple of days after that, the complainant’s father and paternal grandfather approached the complainant at a soccer game and tried to take him home. There was then an incident in which the complainant threatened to take his life, the ambulance was called and the complainant was transported to a local hospital, where he underwent assessment before being discharged to the care of his mother some hours later. The complainant did not return to the appellant’s house after this incident. The complainant’s mother then gained access to the complainant’s mobile telephone, and identified a number of text messages sent by the appellant to him, including one where the appellant had sent a photograph of herself in a G-string with the caption “sweet dreams”. That photograph had been sent a couple of weeks before the complainant had moved to the appellant’s house. The telephone was handed to police, who downloaded its contents, including messages between the complainant and the appellant which were tendered at the trial. The complainant was first interviewed by police on 22 March 2017, which was four days after he had returned to live with his mother. The police were investigating whether there had been some sexual contact between the complainant and the appellant, the suspicion of which had been caused, in part, by the text messages and the photograph. During this interview, however, the complainant was adamant that there had been no sexual contact, and said that his only physical interaction with the appellant had been by hugging. Within weeks of this interview, two school friends of the complainant received text messages from the appellant, who asked them about the complainant. The complainant was told by his friends of the messages, and not soon afterwards, he told each of them that there had been sexual contact between him and the appellant. He told one of the friends, M, that the appellant “seduced him into rape”. He told the other friend, J, that the appellant had raped him. Encouraged by his friends, on 16 May 2017, the complainant told his mother that he had been seduced by the appellant, and he made a similar disclosure to his father later on the same day. He said to his mother that he could not believe that he had “lost [his] virginity to that thing”.

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 Bryce [2021] QCA 145
PARTIES:	R v BRYCE, Tamara Renita (appellant)
FILE NO/S:	CA No 77 of 2020 DC No 64 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 9 March 2020 (McGinness DCJ)
DELIVERED ON:	20 July 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2021
JUDGES:	Fraser and Morrison and McMurdo JJA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of three counts of indecent dealing of a child under 16 and one count of unlawful carnal knowledge with a child – where police questioned the complainant prior to him disclosing the offending to his friends and his parents – where the complainant made no disclosure of any offending to the police in the first interview – whether evidence of the complainant’s disclosures to his friends and parents were admissible as ‘preliminary complaints’ under s 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) –whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the prosecution and defence agreed to redact passages of the appellant’s record of police interview – where an unredacted record of the police interview was inadvertently provided to the jury – where the trial judge refused an application made by defence counsel for the jury to be discharged – whether the inclusion of the record of interview was prejudicial to the appellant – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of unlawful carnal knowledge with a child – whether it was open to the jury to convict on the evidence Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied R v DBA (2012) 219 A Crim R 408; [2012] QCA 49, considered
COUNSEL:	J Crawford for the appellant C N Marco for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent