R v CDN - [2025] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDN [2025] QCA 19

PARTIES:

R
v
CDN
(appellant)

FILE NO/S:

CA No 97 of 2024
DC No 821 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 19 April 2024 (Sheridan DCJ)

DELIVERED ON:

4 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2025

JUDGES:

Mullins P, Gotterson AJA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted by jury of one count of rape (Count 7) – where the appellant was acquitted of two other counts of rape (Counts 8 and 9) – where Counts 7, 8 and 9 were alleged to have arisen out of the same incident – whether a guilty verdict in respect of Count 7 was inconsistent with the not guilty verdicts on Counts 8 and 9

Criminal Code (Qld), s 349
Evidence Act 1977 (Qld), s 21AK, s 93A

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, followed
R v BEN [2024] QCA 179, cited
R v Bond[2018] QCA 130, cited
R v CCX[2022] QCA 260, cited

COUNSEL:

L C Falcongreen for the appellant
C M Cook for the respondent

SOLICITORS:

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

MULLINS P: I agree with Gotterson AJA.
GOTTERSON AJA: The appellant, CDN, was tried on a nine-count indictment before Judge Sheridan in the District Court at Kingaroy. The trial occupied four days from the 16^th to 19^th of April 2024 inclusive. The counts alleged sexual offending by the appellant at Cherbourg.
For Counts 1 and 2, the offending was alleged to have been against a male child on a date unknown between the 10^th of April 2015 and the 11^th of April 2017. The jury were directed to ac quit on those counts on the third day of the trial.
Counts 3 to 9 concerned alleged offending against another male child whom I shall refer to as “the complainant”. Count 3 alleged offending against s 229B(1) of the Criminal Code (Qld) (“the Code”) in that the appellant maintained an unlawful sexual relationship with the complainant between the 20^th of November 2019 and the 24^th of June 2021 in the course of which he raped the complainant. It was further alleged that the offence was a domestic violence offence in accordance with s 564(3A) of the Code.
Counts 4, 5 and 6 related to offending alleged to have taken place at the public toilets at the Cherbourg cemetery on a date unknown between the 20^th of November 2019 and the 21^st of November 2020. Each of these counts alleged rape of the complainant by the appellant in contravention of…

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 CDN

Details

AGLC: R v CDN [2025] QCA 19
Case: [2025] QCA 19
Decision Date: 4 March 2025

CaseChat Overview and Summary

The case of R v CDN involved an appeal by the appellant against a conviction by a jury of one count of rape, but acquittals on two other counts of rape, all of which were alleged to have occurred during the same incident. The appeal was grounded on the inconsistency between the guilty verdict on Count 7 and the not guilty verdicts on Counts 8 and 9. The central issue before the court was whether a guilty verdict on one count of rape could coexist with not guilty verdicts on two other counts of rape when all three counts arose from the same incident. The court was required to examine the evidence and determine whether the jury's verdicts were legally sound and if there was any evidential basis that could support the inconsistent outcomes.

The court thoroughly reviewed the evidence presented to the jury, particularly focusing on the complainant's testimony and the specific details he provided regarding the alleged incidents. The complainant had provided a detailed account of the events, describing the appellant's actions in explicit terms. The court noted that the complainant's testimony was consistent across different parts of the interview, despite some indistinctions, and that the complainant had provided clear descriptions of the alleged acts. The court found that the evidence, when considered as a whole, supported the jury's decision that the appellant was guilty of one count of rape while not guilty of the other two counts. The jury was entitled to assess the credibility and weight of the complainant's evidence, and the court found no error in the jury's reasoning that led to the inconsistent verdicts.

After careful consideration of the evidence and the legal principles governing jury verdicts, the court concluded that the jury's verdicts were not inconsistent and were supported by the evidence. The appeal was dismissed, and the conviction on Count 7 was upheld. The court found that the jury's decision, while seemingly inconsistent, was within their prerogative to make findings of fact based on the evidence presented. The appellant's appeal was thus unsuccessful, and the original conviction stood.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Consideration of this ground of appeal necessitates a review of the evidence before the jury relevant to these three counts. Before turning to aspects of that evidence I note that the subject premises was a house where the complainant and his mother resided. The appellant is the mother’s cousin. The complainant would refer to him as “uncle”.Complainant’s evidence The complainant was taken to Cherbourg hospital by members of his family on the evening of 24th of June 2021, the day after the alleged offending at the residence. He was interviewed by police at the hospital between 9.00 pm and 9.41 pm. A recording of that interview was tendered pursuant to s 93A of the Evidence Act 1977 (Qld).[3] A transcript of it was marked for identification.[3]Exhibit 1. Transcript at AB 347-371. In the course of the interview, the complainant said that he and his younger brother, D, then six years old, were at the premises with the appellant. His mother was away drinking at the time.[4] According to the complainant, “[the appellant] said come here and then I went to him and he went in my mum's room and he did all the gay stuff to me”.[5][4]AB 352 ll 35-58.[5]AB 351 ll 10-11. Early in the interview, the complainant had said that the appellant had made him put his (the complainant’s) mouth on his (the appellant’s) “private part”.[6] He also said that the appellant put his tongue in his “butt”.[7][6]AB 349 ll 19-22.[7]AB 349 ll 50-55. The complainant was then taken through events in more detail. He agreed that he had said that the appellant made him put his mouth on the former.[8] Then the complainant said: “he put his private part in mine”.[9] He clarified that he meant that it was in his “butt”.[10] The complainant’s mother returned home and the appellant stopped.[11] The complainant ran up the road to his “nan’s” house because he was scared.[12][8]AB 351 ll 48-50. By way of clarification, the transcript records the complainant’s apparent statement to that effect as “indistinct”.[9]AB 351 l 59.[10]AB 352 l 5.[11]AB 353 l 25.[12]AB 353 l 40. When asked to repeat everything that had happened that day, the complainant stated that his mother was drinking “somewhere else” and his uncle had been cooking lasagne and smoking “yarndi”. The appellant stopped that and put his “private part” into the complainant’s mouth. This, he said, happened in the bathroom.[13] Then he put his tongue into the complainant’s bottom and his “private part” into his “butt” as well.[14] When asked whether he was then clothed, the complainant said that the appellant made him pull down his shorts and underpants.[15] He also said that it was on his mother’s bed that the appellant put his “privates” in his “butt”.[16][13]AB 370 ll 9-10.[14]AB 362 ll 10 - AB 363 l 15.[15]AB 365 l 45 - AB 366 l 3.[16]AB 370 ll 15-20. The complainant stated “when I do a poo it hurts too”. He added that he had not showered since the alleged offending on the previous evening.[17][17]AB 366 ll 51-54.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v CDN [2025] QCA 19
PARTIES:	R v CDN (appellant)
FILE NO/S:	CA No 97 of 2024 DC No 821 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 19 April 2024 (Sheridan DCJ)
DELIVERED ON:	4 March 2025
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2025
JUDGES:	Mullins P, Gotterson AJA and Henry J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted by jury of one count of rape (Count 7) – where the appellant was acquitted of two other counts of rape (Counts 8 and 9) – where Counts 7, 8 and 9 were alleged to have arisen out of the same incident – whether a guilty verdict in respect of Count 7 was inconsistent with the not guilty verdicts on Counts 8 and 9 Criminal Code (Qld), s 349 Evidence Act 1977 (Qld), s 21AK, s 93A M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, followed R v BEN [2024] QCA 179, cited R v Bond[2018] QCA 130, cited R v CCX[2022] QCA 260, cited
COUNSEL:	L C Falcongreen for the appellant C M Cook for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent