R v CBC - [2012] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBC [2012] QCA 28

PARTIES:

R
v
CBC
(appellant)

FILE NO/S:

CA No 218 of 2011
DC No 257 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

28 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2012

JUDGES:

Margaret McMurdo P and Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PATRICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted after trial of maintaining a sexual relationship with a child with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation and 11 counts of rape – where the appellant was found not guilty on 11 counts of rape – whether the verdicts of guilty are inconsistent with the verdicts of acquittal

Criminal Code 1899 (Qld), s 668E(1)

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
R v RAE[2008] QCA 364, cited
R v SBL[2009] QCA 130, cited

COUNSEL:

A J Glynn SC for the appellant
B J Power for the respondent

SOLICITORS:

Robertson O'Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The appellant was convicted after a 19 day trial of maintaining a sexual relationship with a child with circumstances of aggravation (count 1), four counts of indecent treatment of a child under 16 with circumstances of aggravation (counts 2 to 5) and 11 counts of rape (counts 6, 7, 8, 12, 15, 16, 17, 20, 21, 23 and 25). He was found not guilty on 11 counts of rape (counts 9-11, 13, 14, 18, 19, 22, 24, 26 and 27). He has appealed against his convictions contending that the guilty verdicts are unreasonable in that they are inconsistent with the verdicts of not guilty. A consideration of this ground of appeal requires a thorough review of relevant aspects of the evidence at the lengthy trial; of the judge's directions to the jury; and of the jury's deliberations.

The relevant prosecution evidence

The appellant was the complainant's de facto stepfather since 1998 when she was about seven years old. She was 21 at trial. The offences were alleged to have occurred between 28 December 1997 and 31 August 2007 when she was aged between seven and 17. She gave evidence that counts 1-9 inclusive occurred before she turned 16 and the remaining counts afterwards. During the period of the offending she lived with her family and the appellant at various houses in south-east Queensland. The appellant operated a wrecking yard at M until he sold the business in 2000. From 1998, he operated another wrecking yard at CP. Some years later, he organised a drag car racing team from the CP site. The complainant gave…

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 CBC

Details

AGLC: R v CBC [2012] QCA 28
Case: [2012] QCA 28
Decision Date: 28 February 2012

CaseChat Overview and Summary

The case of R v CBC involved an appeal against a conviction by the appellant, who had been found guilty of maintaining a sexual relationship with a child under 16 with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation, and 11 counts of rape. The appellant was acquitted on 11 counts of rape. The appeal centred on the argument that the guilty verdicts on the remaining counts were inconsistent with the acquittal on the other 11 counts of rape. The Court of Appeal was tasked with determining whether the verdicts of guilty and acquittal could coexist in a legally sound manner.

The primary legal issue before the Court of Appeal was whether the verdicts of guilty on the counts where the appellant was found to have engaged in sexual acts with a child under 16 could be reconciled with the acquittal on the 11 counts of rape. The Court had to consider the nature of the evidence presented, the legal definitions involved, and whether there was a logical inconsistency that rendered the verdicts legally untenable. This required a detailed analysis of the evidence and the jury's reasoning process.

The Court of Appeal examined the evidence and concluded that there was no inconsistency between the guilty verdicts and the acquittal on the 11 counts of rape. The Court found that the jury could have reasonably believed that the appellant was guilty of the crimes for which he was convicted while simultaneously concluding that he was not guilty of the crimes for which he was acquitted. The reasoning was based on the different legal standards and elements required for each offence, which allowed for the possibility of a guilty verdict on some counts and an acquittal on others without any logical contradiction. Therefore, the appeal was dismissed.

The final order of the Court of Appeal was to dismiss the appellant's appeal against his conviction. The Court found no grounds to overturn the verdicts and upheld the conviction as legally sound. The appellant remained convicted of maintaining a sexual relationship with a child under 16 with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation, and acquitted on 11 counts of rape.

Orders

Orders of the court

Appeal against conviction 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 CBC [2012] QCA 28
PARTIES:	R v CBC (appellant)
FILE NO/S:	CA No 218 of 2011 DC No 257 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	28 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2012
JUDGES:	Margaret McMurdo P and Chesterman JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PATRICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted after trial of maintaining a sexual relationship with a child with circumstances of aggravation, four counts of indecent treatment of a child under 16 with circumstances of aggravation and 11 counts of rape – where the appellant was found not guilty on 11 counts of rape – whether the verdicts of guilty are inconsistent with the verdicts of acquittal Criminal Code 1899 (Qld), s 668E(1) MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied R v RAE[2008] QCA 364, cited R v SBL[2009] QCA 130, cited
COUNSEL:	A J Glynn SC for the appellant B J Power for the respondent
SOLICITORS:	Robertson O'Gorman Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent