R v CBF - [2012] QCA 294

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBF [2012] QCA 294

PARTIES:

R
v
CBF
(appellant)

FILE NO/S:

CA No 150 of 2012
DC No 488 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

30 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2012

JUDGES:

Muir JA, Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was convicted of one count of rape, found not guilty of one count of rape and found not guilty of four counts of indecent treatment of a child – where jury was unable to reach agreement in relation to four counts of rape and one count of indecent treatment of a child – where all counts related to the same complainant – where appellant contends that the guilty verdict cannot be reconciled logically or reasonably with the verdicts on other counts – whether the guilty verdict on count 4 was inconsistent with other verdicts

Criminal Code 1899 (Qld), s 668E
Evidence Act 1977 (Qld), s 21AK

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v BCE [2012] QCA 58, cited
R v CX [2006] QCA 409, cited
R v DAL [2005] QCA 281, cited
R v Garrett [2009] QCA 300, cited
R v JK [2005] QCA 307, cited
R v Kahu [2006] QCA 33, cited
R v Ritchie (2005) 12 VR 145; [2005] VSCA 166, cited
R v SBL [2009] QCA 130, cited

COUNSEL:

S M Ryan for the appellant
M B Lehane for the respondent

SOLICITORS:

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

MUIR JA: I would dismiss the appeal for the reasons given by Applegarth J with which I agree.

ATKINSON J: I agree with the order proposed by Applegarth J for the reasons given by his Honour.

APPLEGARTH J: On 8 June 2012 the appellant was convicted of one count of rape. The complainant was aged eight at the time of the offence. The appellant had been charged with 11 sexual offences involving the complainant. The jury was unable to agree on verdicts on five of the counts. Not guilty verdicts were returned on five counts.

The complainant’s mother and her partner came to know the appellant and his partner. In December 2009 the complainant’s family moved from their previous home to live with the appellant and his partner at W. They lived there until March 2010. The complainant called the appellant, who by March 2010 was aged 60, “Pop”.

The offences were alleged to have happened either at the appellant’s home or on a fishing trip to D in late June 2010. Count 7 alleged an offence at D, when it should have…

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 CBF

Details

AGLC: R v CBF [2012] QCA 294
Case: [2012] QCA 294
Decision Date: 30 October 2012

CaseChat Overview and Summary

The appellant in this matter was convicted of one count of rape, found not guilty of another count of rape, and acquitted of four counts of indecent treatment of a child. The jury, however, could not reach a decision on four counts of rape and one count of indecent treatment of a child, all of which related to the same complainant. The appellant sought to appeal against the conviction on the ground that the guilty verdict was inconsistent with the other verdicts.

The court was required to determine whether the guilty verdict on count 4 was inconsistent with the other verdicts. The appellant argued that the verdict was not logically or reasonably reconcilable with the not guilty verdicts on other counts. The court considered whether the jury's verdict on count 4 was consistent with the other verdicts, and whether the inconsistency was so glaring that it undermined the verdict. The court also considered whether the inconsistency was due to some irregularity in the proceedings that affected the fairness of the trial.

The court found that the verdict on count 4 was not inconsistent with the other verdicts. The court held that the jury was entitled to convict the appellant on count 4 based on the evidence presented, even though it found the appellant not guilty of other counts. The court found that there was no irregularity in the proceedings that affected the fairness of the trial. The court held that the verdict on count 4 was consistent with the other verdicts, and that the inconsistency did not undermine the verdict.

The appeal was dismissed. The conviction on count 4 was upheld, and the appellant's conviction for rape was affirmed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 CBF [2012] QCA 294
PARTIES:	R v CBF (appellant)
FILE NO/S:	CA No 150 of 2012 DC No 488 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	30 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2012
JUDGES:	Muir JA, Atkinson and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where appellant was convicted of one count of rape, found not guilty of one count of rape and found not guilty of four counts of indecent treatment of a child – where jury was unable to reach agreement in relation to four counts of rape and one count of indecent treatment of a child – where all counts related to the same complainant – where appellant contends that the guilty verdict cannot be reconciled logically or reasonably with the verdicts on other counts – whether the guilty verdict on count 4 was inconsistent with other verdicts Criminal Code 1899 (Qld), s 668E Evidence Act 1977 (Qld), s 21AK MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited R v BCE [2012] QCA 58, cited R v CX [2006] QCA 409, cited R v DAL [2005] QCA 281, cited R v Garrett [2009] QCA 300, cited R v JK [2005] QCA 307, cited R v Kahu [2006] QCA 33, cited R v Ritchie (2005) 12 VR 145; [2005] VSCA 166, cited R v SBL [2009] QCA 130, cited
COUNSEL:	S M Ryan for the appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for the respondent