R v CDI - [2024] QCA 232

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDI [2024] QCA 232

PARTIES:

R
v
CDI
(appellant)

FILE NO/S:

CA No 145 of 2023
DC No 1544 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 2 August 2023 (Allen KC DCJ)

DELIVERED ON:

22 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2024

JUDGES:

Mullins P and Brown JA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of one count of maintaining a sexual relationship and 13 counts of individual sex offences against his stepdaughter – where the Crown led preliminary complaint evidence from three witnesses – where one preliminary complaint witness gave evidence that the appellant used to enter the complainant’s bedroom forcefully – where the complainant gave contrary evidence that the appellant entered her bedroom quietly – where the appellant alleges that that preliminary complaint evidence about forceful entry into the complainant’s bedroom was inadmissible and prejudicial – where the trial judge gave an orthodox direction that preliminary complaint evidence is only relevant to the assessment of the complainant’s credibility and reliability – where no misdirection occurred – whether the preliminary complaint evidence of forceful entry into the bedroom was inadmissible – whether the evidence of forceful entry into the bedroom formed part of the ‘how’ the preliminary complaint was made – whether the trial judge erred in his preliminary complaint direction

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A
Evidence Act 1977 (Qld), s 94A
Evidence (Protection of Children) Amendment Act 2003 (Qld), s 40

GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40, cited
Jones v The Queen (1997) 71 ALJR 538; [1997] HCA 12, cited
R v AW[2005] QCA 152, followed
R v Lillyman [1896] 2 QB 167; [1896] UKLawRpKQB 126, cited
R v NM [2013] 1 Qd R 374; [2012] QCA 173, followed
R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited
R v Riera[2011] QCA 77, cited

COUNSEL:

M F Bonasia for the appellant
S L Dennis for the respondent

SOLICITORS:

George Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Henry J.
BROWN JA: I agree with the reasons of Henry J and the order proposed by his Honour.
HENRY J: The appellant stood trial for an array of sex offences allegedly committed against his stepdaughter over many years. He was convicted of one count of maintaining a sexual relationship with a child. He was also convicted of 13 individual sex offences committed while maintaining that relationship, 12 of them in the complainant’s bedroom.
He appeals his conviction on the sole ground the learned trial judge ‘erred and misdirected the jury in relation to what was termed preliminary complaint evidence and how…

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 CDI

Details

AGLC: R v CDI [2024] QCA 232
Case: [2024] QCA 232
Decision Date: 22 November 2024

CaseChat Overview and Summary

The appeal was brought by the appellant, who had been found guilty by a jury of one count of maintaining a sexual relationship and 13 counts of individual sex offences against his stepdaughter. The appellant's challenge to his conviction was based on the contention that the trial judge erred in his direction to the jury in relation to the preliminary complaint evidence provided by three witnesses. The evidence in question related to the appellant entering the complainant's bedroom forcefully, a claim which the complainant herself denied, stating that the appellant entered her bedroom quietly. The appellant argued that the trial judge misdirected the jury in relation to the admissibility and prejudicial effect of this evidence, and that it was inadmissible because it was not relevant to the complainant's credibility.

The key legal issues before the court were whether the evidence of forceful entry into the bedroom was inadmissible and prejudicial, and whether the trial judge erred in his direction to the jury in relation to the admissibility of the evidence. The court had to determine whether the evidence of forceful entry into the bedroom was part of the 'how' the preliminary complaint was made, and whether the trial judge misdirected the jury in his direction in relation to the admissibility of the evidence. The court found that the evidence was admissible and relevant to the complainant's credibility, and that the trial judge did not misdirect the jury in his direction.

In reaching its decision, the court noted that the trial judge had given an orthodox direction to the jury that preliminary complaint evidence was only relevant to the assessment of the complainant's credibility and reliability. The court found that there was no misdirection by the trial judge, as he had correctly directed the jury to consider the preliminary complaint evidence in the context of the complainant's credibility. The court also found that the evidence of forceful entry into the bedroom was part of the 'how' the preliminary complaint was made, and was therefore admissible. The court concluded that the evidence was relevant to the complainant's credibility and was not inadmissible or prejudicial.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 4A (recently replaced by s 94A Evidence Act 1977 (Qld)) relevantly provided:“4A Evidence of complaint generally admissible(1)This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.(2)Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.(3)Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.…(6)In this section––complaint includes a disclosure.preliminary complaint means any complaint other than––(a) the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or(b) a complaint made after the complaint mentioned in paragraph (a).” The effect of s 4A, is that in a trial in relation to a sexual offence, evidence of ‘how and when’ any preliminary complaint, which ‘includes a disclosure’, was made about the alleged commission of the offence, is admissible if the complaint preceded the complainant’s first formal witness statement to police. It warrants emphasis that s 4A(6) defines a ‘complaint’ not as a disclosure but as including a disclosure. In other words, a preliminary complaint about the alleged commission of a sexual offence is not confined to the bare words disclosing the alleged commission of the offence.[3] Further, s 4A(2) contemplates the admission into evidence ‘of how and when any preliminary complaint was made’. The ‘how’ part of how a preliminary complaint was made logically includes not just the circumstances under which the complaint was made but the content of the complaint.[3]R v Riera [2011] QCA 77, [7]. None of this is surprising. As long ago as 1896 in R v Lillyman,[4] it was observed of a fresh complaint of sexual offending that ‘the whole statement of a woman containing her alleged complaint should, so far as it relates to the charge against the accused, be submitted to the jury’. More recently, in respect of s 4A, McMurdo P observed in R v AW,[5] the legislature ‘plainly intended that the jury have the full context of any preliminary complaint or disclosure so as to most accurately assess the credibility (or lack of credibility) of the complainant and the complaint’.[4][1896] 2 QB 167.[5][2005] QCA 152, [26]. The admissible content of how a preliminary complaint was made may go beyond words directly disclosing the alleged offending. Its subject matter may be ‘about’ the alleged commission of the offence by reason of a less direct connection with it. The connection may derive from contextual content, which may be probative of the meaning of what was disclosed. It may derive from factual content, about some aspect of the circumstances of the alleged commission of the offence, which may be probative of consistency or inconsistency in what was disclosed when compared with the complainant’s evidence.

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 CDI [2024] QCA 232
PARTIES:	R v CDI (appellant)
FILE NO/S:	CA No 145 of 2023 DC No 1544 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 2 August 2023 (Allen KC DCJ)
DELIVERED ON:	22 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2024
JUDGES:	Mullins P and Brown JA and Henry J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of one count of maintaining a sexual relationship and 13 counts of individual sex offences against his stepdaughter – where the Crown led preliminary complaint evidence from three witnesses – where one preliminary complaint witness gave evidence that the appellant used to enter the complainant’s bedroom forcefully – where the complainant gave contrary evidence that the appellant entered her bedroom quietly – where the appellant alleges that that preliminary complaint evidence about forceful entry into the complainant’s bedroom was inadmissible and prejudicial – where the trial judge gave an orthodox direction that preliminary complaint evidence is only relevant to the assessment of the complainant’s credibility and reliability – where no misdirection occurred – whether the preliminary complaint evidence of forceful entry into the bedroom was inadmissible – whether the evidence of forceful entry into the bedroom formed part of the ‘how’ the preliminary complaint was made – whether the trial judge erred in his preliminary complaint direction Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Evidence Act 1977 (Qld), s 94A Evidence (Protection of Children) Amendment Act 2003 (Qld), s 40 GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40, cited Jones v The Queen (1997) 71 ALJR 538; [1997] HCA 12, cited R v AW[2005] QCA 152, followed R v Lillyman [1896] 2 QB 167; [1896] UKLawRpKQB 126, cited R v NM [2013] 1 Qd R 374; [2012] QCA 173, followed R v RH [2005] 1 Qd R 180; [2004] QCA 225, cited R v Riera[2011] QCA 77, cited
COUNSEL:	M F Bonasia for the appellant S L Dennis for the respondent
SOLICITORS:	George Criminal Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent