R v BZ - [2003] QCA 26

SUPREME COURT OF QUEENSLAND

CITATION:

R v BZ [2003] QCA 26

PARTIES:

R
v
BZ
(appellant)

FILE NO/S:

CA No 305 of 2002
DC No 2557 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

10 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2003

JUDGES:

McMurdo P, McPherson JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Appeal against conviction on count 2 allowed. Conviction and verdict set aside. Judgment of acquittal entered on count 2;

2.   Otherwise appeals against conviction dismissed;

3.   Appeal against sentence allowed to the extent of reducing the sentence on each of counts 4 to 38 in respect of which the appellant was convicted from four years to three years imprisonment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – Whether offender can be punished for sexual acts committed of which he was neither charged nor convicted

R v D [1996] 1 Qd R 363, followed

COUNSEL:

T Carmody SC for the appellant
D Meredith for the respondent

SOLICITORS:

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

McPHERSON JA: This began as an appeal against conviction on an indictment that charged two counts of indecent dealing committed on the complainant when she was under 16 years (counts 1 and 2), one count (count 3) of unlawful carnal knowledge committed on the same complainant when she was a child under 16, and 35 counts of incest on the complainant after she had turned 16.

The offence charged in count 1 was alleged to have been committed between 1st January 1983 and 1st January 1984 at a time, when the complainant was aged seven. Count 2 related to the period between 22nd April 1985 and 17th June 1988, when she was aged between nine and 11 years old. Count 3 between 1st June 1992 and 30th September 1992, when she was aged 15 and a half years.

The complainant was the appellant's stepdaughter and the first of the acts of incest with which he was charged, which was in count 4, was alleged to have occurred on 10th July 1997 when the complainant was 20 years old, while the last, count 38, was alleged to have occurred when she was 24 years old in September 2000.

On one of those counts, that is, number 35, there was, for reasons not entirely clear to me, an acquittal. That can make no material difference to the overall result of this matter.

The appellant was acquitted of count 1, but was found guilty of all of the other charges apart from count 35. The notice of appeal challenges the conviction on count 2 on a number of separate grounds such as lack or particularity in the evidence adduced to prove the charge, inconsistency with the verdict of acquittal on count 1, and the inadmissibility of certain video tapes…

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 BZ

Details

AGLC: R v BZ [2003] QCA 26
Case: [2003] QCA 26
Decision Date: 10 February 2003

CaseChat Overview and Summary

In the case of R v BZ, the respondent appealed against his conviction and sentence for a series of sexual offences against various victims. The case was heard in the High Court of Australia. The respondent argued that he should not be punished for sexual acts for which he was not charged or convicted and that his sentence was excessive.

The primary legal issues before the court were whether the respondent could be punished for sexual acts for which he was neither charged nor convicted, and whether the sentence imposed was appropriate. The court considered whether the respondent's rights under the principle of legality, which prohibits punishing someone for an offence that was not clearly defined by law at the time it was committed, were violated. The court also considered whether the sentence imposed was excessive and whether it should be reduced.

The court held that the respondent could not be punished for sexual acts for which he was neither charged nor convicted, as this would violate the principle of legality. The court found that the respondent's conviction and verdict on count 2 should be set aside, and a judgment of acquittal should be entered. The court also found that the sentence imposed was excessive and reduced the sentence on each of counts 4 to 38 from four years to three years imprisonment. The court dismissed the respondent's appeals against his conviction on counts other than count 2.

The court ordered that the appeal against the conviction on count 2 be allowed, and the conviction and verdict be set aside. A judgment of acquittal was to be entered on count 2. The appeals against the respondent's conviction on other counts were dismissed. The appeal against the sentence was allowed to the extent of reducing the sentence on each of counts 4 to 38 from four years to three years imprisonment.

Orders

Orders of the court

1. Appeal against conviction on count 2 allowed. Conviction and verdict set aside. Judgment of acquittal entered on count 2;

2. Otherwise appeals against conviction dismissed;

3. Appeal against sentence allowed to the extent of reducing the sentence on each of counts 4 to 38 in respect of which the appellant was convicted from four years to three years imprisonment.

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 BZ [2003] QCA 26
PARTIES:	R v BZ (appellant)
FILE NO/S:	CA No 305 of 2002 DC No 2557 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	10 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2003
JUDGES:	McMurdo P, McPherson JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction on count 2 allowed. Conviction and verdict set aside. Judgment of acquittal entered on count 2; 2. Otherwise appeals against conviction dismissed; 3. Appeal against sentence allowed to the extent of reducing the sentence on each of counts 4 to 38 in respect of which the appellant was convicted from four years to three years imprisonment.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – Whether offender can be punished for sexual acts committed of which he was neither charged nor convicted R v D [1996] 1 Qd R 363, followed
COUNSEL:	T Carmody SC for the appellant D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent