R v DBD - [2012] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBD [2012] QCA 268

PARTIES:

R
v
DBD
(appellant)

FILE NO/S:

CA No 75 of 2012
DC No 18 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gladstone

DELIVERED ON:

5 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2012

JUDGES:

Fraser and Gotterson JJA and McMeekin J
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 –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of maintaining an unlawful relationship of a sexual nature with a child under 16 years – where appellant argued that verdict was unsafe and unsatisfactory – where appellant argued complainant’s initial disclosure was in response to leading questions and contained no details of alleged offence – where appellant argued inconsistencies between complainant’s evidence and evidence of complainant’s friend – where appellant argued witness not seeing alleged conduct weakened Crown case – whether on the whole of the evidence it was reasonably open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL –OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES – where appellant argued that trial miscarried as a result of jury hearing recorded statements by sister of complainant as to her opinion of complainant’s reluctance to attend school and what her mother had said on the same subject – where defence counsel did not object – where trial judge ruled evidence inadmissible and instructed jury that the evidence was irrelevant – whether the admission of the inadmissible evidence resulted in a miscarriage of justice

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

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9, cited
Patel v The Queen (2012) 290 ALR 189; [2012] HCA 29, cited
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

J R Hunter SC for the appellant
A W Moynihan SC for the respondent

SOLICITORS:

Chris Trevor & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: The appellant has appealed against his conviction of maintaining an unlawful relationship of a sexual nature with a child under 16 years between 23rd May 2007 and 1st June 2010. The complainant is the appellant’s niece. She was between seven and 10 years old at the time of the alleged offence.

Appeal ground 1:the verdict is unsafe and unsatisfactory in all the circumstances

The first ground of the appellant’s appeal is that the verdict was unsafe and unsatisfactory in all the circumstances. That invokes the ground in s 668E(1) 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.

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Details

Case: [2012] QCA 268
Decision Date: 5 October 2012

CaseChat Overview and Summary

The appeal arose from the conviction of DBD, who was found guilty of maintaining an unlawful relationship of a sexual nature with a child under 16 years. The appellant contested the conviction on several grounds, arguing that the verdict was unsafe and unsatisfactory, and that the trial miscarried due to the improper admission of evidence. The High Court of Australia was tasked with reviewing the appellant's arguments and determining whether the verdict was reasonably open to the jury on the whole of the evidence.

The primary legal issue before the court was whether the jury could have reasonably been satisfied of the appellant's guilt beyond reasonable doubt, given the evidence presented. The appellant contended that the complainant's initial disclosure was a result of leading questions and lacked details of the alleged offence, and that there were inconsistencies between the complainant's evidence and that of her friend. The appellant also argued that the witness not seeing the alleged conduct weakened the Crown's case. Furthermore, the appellant claimed that the trial miscarried due to the jury hearing recorded statements by the complainant's sister regarding the complainant's reluctance to attend school and comments made by the complainant's mother, despite the trial judge ruling the evidence inadmissible and instructing the jury that it was irrelevant.

The court found that the jury's verdict was reasonably open to them based on the evidence presented, and that the inconsistencies and lack of detail in the complainant's initial disclosure did not render the verdict unreasonable. The court also determined that the appellant's failure to object to the recorded statements meant that the point could not be raised on appeal, and that the admission of the inadmissible evidence did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the conviction was upheld.

The court's decision was clear: the appellant's arguments were not sufficient to overturn the jury's verdict, and the conviction was affirmed. The court emphasised the importance of properly raising objections during the trial and noted that the appellant's failure to do so precluded the court from considering the issue on appeal. The conviction of the appellant was therefore upheld, and the appeal was dismissed.

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 DBD [2012] QCA 268
PARTIES:	R v DBD (appellant)
FILE NO/S:	CA No 75 of 2012 DC No 18 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Gladstone
DELIVERED ON:	5 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2012
JUDGES:	Fraser and Gotterson JJA and McMeekin J 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 –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant convicted of maintaining an unlawful relationship of a sexual nature with a child under 16 years – where appellant argued that verdict was unsafe and unsatisfactory – where appellant argued complainant’s initial disclosure was in response to leading questions and contained no details of alleged offence – where appellant argued inconsistencies between complainant’s evidence and evidence of complainant’s friend – where appellant argued witness not seeing alleged conduct weakened Crown case – whether on the whole of the evidence it was reasonably open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt CRIMINAL LAW – APPEAL AND NEW TRIAL –OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES – where appellant argued that trial miscarried as a result of jury hearing recorded statements by sister of complainant as to her opinion of complainant’s reluctance to attend school and what her mother had said on the same subject – where defence counsel did not object – where trial judge ruled evidence inadmissible and instructed jury that the evidence was irrelevant – whether the admission of the inadmissible evidence resulted in a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9, cited Patel v The Queen (2012) 290 ALR 189; [2012] HCA 29, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL:	J R Hunter SC for the appellant A W Moynihan SC for the respondent
SOLICITORS:	Chris Trevor & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent