R v Dendle

Case [2019] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dendle [2019] QCA 194

PARTIES:

R
v
DENDLE, Robert Jon
(appellant/applicant)

FILE NO/S:

CA No 125 of 2018
DC No 1333 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction and Sentence: 4 May 2018 (Rafter SC DCJ)

DELIVERED ON:

24 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2019

JUDGES:

Fraser and Philippides JJA and Lyons SJA

ORDERS:

1.   Appeal dismissed.

2.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the appellant was convicted of two counts of rape and three counts of indecent treatment – where the complainant was a 13-year-old boy – where the complainant gave a s 93A record of interview – where the complainant died before the trial – where the appellant made an application pursuant to s 590AA Criminal Code to exclude the complainant’s s 93A statement – where the appellant argued the record of interview was unreliable – where the judge was satisfied that the statement was made in circumstances making it highly probable that the representations were reliable – where it was a matter for the jury to assess the reliability – whether there was an error in the judge’s exercise of discretion to not exclude the evidence of the s 93A statement being admitted pursuant to s 93B of the Evidence Act

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the Crown made an application pursuant to s 590AA Criminal Code to admit the s 93A statement with respect to the charges in counts 1, 3, 4 and 5 under s 21AF of the Evidence Act and s 110A of the Justices Act – where the statement was contained in a DVD – where in addition the appellant applied pursuant to s 590AA Criminal Code to exclude the s 93A statement on the grounds of unfairness – where the appellant argues that the conditions which allowed for the tendering of the s 93A statement were not met and it should not have been admitted – where the appellant argues the s 93A statement was not tendered nor endorsed at the committal proceedings – where the Crown relies on a certificate signed by the Magistrate at the committal that the statement was tendered in the presence of the appellant – whether there was an error in the judge’s exercise of discretion to not exclude the evidence of the s 93A statement DVD being admitted pursuant to s 110A and s 111 of the Justices Act and s 21AF Evidence Act

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant was convicted of two counts…

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AGLC
R v Dendle [2019] QCA 194
Case
[2019] QCA 194
Decision Date

CaseChat Overview and Summary

In the case of R v Dendle, the appellant was convicted of two counts of rape and three counts of indecent treatment against a 13-year-old boy. The complainant had died before the trial, and the appellant sought to exclude a recorded interview under section 93A of the Evidence Act, arguing it was unreliable. The Crown applied to admit the interview under section 93B of the Evidence Act, and the appellant also challenged the admissibility of a DVD copy of the interview. The appellant further appealed against his conviction, alleging a miscarriage of justice and that the sentence was manifestly excessive.

The central legal issues in this appeal were whether the judge erred in admitting the s 93A statement and the DVD copy of the interview, and whether the appellant's conviction resulted in a miscarriage of justice. The court had to assess the reliability of the s 93A statement, the procedural fairness in admitting the DVD copy, and the overall fairness of the trial process. Additionally, the court examined whether the sentence imposed was manifestly excessive considering the nature and circumstances of the offences.

The court found that the judge was correct in admitting the s 93A statement, as the circumstances rendered it highly probable that the representations were reliable. The court also ruled that the DVD copy was admissible, despite the procedural irregularity, as the appellant was not prejudiced by the timing of the application to exclude it. The court dismissed the appeal against conviction, concluding that there was no miscarriage of justice as the evidence was sufficient to support the verdict. Regarding the sentence, the court found that the sentence was not manifestly excessive, taking into account the serious nature of the offences and the appellant's prior criminal history.

The court dismissed the appeal and refused the application for leave to appeal against the sentence. This decision affirms the conviction and sentence imposed on the appellant, reflecting the court's view that the trial was conducted fairly and the sentence was appropriate.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal against sentence refused.

Background

Background to the litigation

In his application for leave to adduce evidence filed on 14 March 2019, the appellant sets out a number of documents which he seeks leave to adduce including letters between his solicitors and himself; between Legal Aid and himself; as well as documents from the Department of Child Services, Queensland Health records, a copy of the school records of the complainant together with the transcripts of the committal proceeding in the Caboolture Magistrates Court on 30 March 2016. His application in relation to all that material, except with respect to the transcript of the committal, was dismissed for the reasons given by Fraser JA at the hearing of the Application. Whilst the transcript was provisionally received into evidence the ruling with respect to its relevance was reserved and will be discussed later in these reasons.Factual Background The complainant was a 13 year old boy who lived with his father. The appellant knew the complainant’s father, having worked with him previously, and they remained friends after the appellant moved to Sydney. The complainant’s father offered the appellant accommodation when he moved to Brisbane in October 2015. He occupied a bedroom at the back of the house which was close to the complainant’s bedroom and they shared a bathroom. The offences the subject of the charges on the indictment occurred about a month later. It was a hot day, and the appellant and the complainant’s father had bought a blow-up swimming pool. They had all spent the day in the pool with the appellant drinking considerable amounts of alcohol. He became heavily intoxicated. He was also taking codeine tablets for a back injury. The complainant was also drinking beer and on the appellant’s evidence had three or four beers over the course of the afternoon. The evidence at trial indicated that after dinner that evening the complainant’s father fell asleep around 10.30 pm. It was alleged that the appellant then went into the complainant’s bedroom and asked him to come to his bedroom to talk. The complainant did so but the appellant closed the door and turned the light off. The appellant then pushed the complainant onto his bed, put his hand over his mouth and then put a pillow over his face. The complainant was held down on the bed and at one point, in an effort to escape his grip, the complainant head butted him. The appellant then sexually abused him over a period of about three or four hours. A summary of the appellant’s conduct in relation to each of the five counts of which he was convicted is:Count 1: Trying to kiss the complainant and licking the complainant’s stomach, chest and neck.Count 2: Penetrating the complainant’s anus with his penis while wearing a condom and continuing with that penetration for “a prolonged period”[1].Count 3: Placing his penis into the complainant’s mouth.Count 5: Making threats to the complainant to cause the complainant to penetrate the appellant’s anus with his penis while the complainant was wearing a condom.Count 6: Forcing his penis into the complainant’s mouth for “a considerable period of time”[2].[1]ARB 2 at 262 l 47.[2]ARB 2 at 263 l 7.

Evidence

Evidence Before The Court

The appellant now seeks leave to adduce evidence at the hearing of his appeal, appeals his conviction on the basis that there has been a miscarriage of justice, and argues that the sentence imposed was manifestly excessive.Application for leave to adduce further evidence In his application for leave to adduce evidence filed on 14 March 2019, the appellant sets out a number of documents which he seeks leave to adduce including letters between his solicitors and himself; between Legal Aid and himself; as well as documents from the Department of Child Services, Queensland Health records, a copy of the school records of the complainant together with the transcripts of the committal proceeding in the Caboolture Magistrates Court on 30 March 2016. His application in relation to all that material, except with respect to the transcript of the committal, was dismissed for the reasons given by Fraser JA at the hearing of the Application. Whilst the transcript was provisionally received into evidence the ruling with respect to its relevance was reserved and will be discussed later in these reasons.Factual Background The complainant was a 13 year old boy who lived with his father. The appellant knew the complainant’s father, having worked with him previously, and they remained friends after the appellant moved to Sydney. The complainant’s father offered the appellant accommodation when he moved to Brisbane in October 2015. He occupied a bedroom at the back of the house which was close to the complainant’s bedroom and they shared a bathroom. The offences the subject of the charges on the indictment occurred about a month later. It was a hot day, and the appellant and the complainant’s father had bought a blow-up swimming pool. They had all spent the day in the pool with the appellant drinking considerable amounts of alcohol. He became heavily intoxicated. He was also taking codeine tablets for a back injury. The complainant was also drinking beer and on the appellant’s evidence had three or four beers over the course of the afternoon. The evidence at trial indicated that after dinner that evening the complainant’s father fell asleep around 10.30 pm. It was alleged that the appellant then went into the complainant’s bedroom and asked him to come to his bedroom to talk. The complainant did so but the appellant closed the door and turned the light off. The appellant then pushed the complainant onto his bed, put his hand over his mouth and then put a pillow over his face. The complainant was held down on the bed and at one point, in an effort to escape his grip, the complainant head butted him. The appellant then sexually abused him over a period of about three or four hours. A summary of the appellant’s conduct in relation to each of the five counts of which he was convicted is:Count 1: Trying to kiss the complainant and licking the complainant’s stomach, chest and neck.Count 2: Penetrating the complainant’s anus with his penis while wearing a condom and continuing with that penetration for “a prolonged period”[1].Count 3: Placing his penis into the complainant’s mouth.Count 5: Making threats to the complainant to cause the complainant to penetrate the appellant’s anus with his penis while the complainant was wearing a condom.Count 6: Forcing his penis into the complainant’s mouth for “a considerable period of time”[2].[1]ARB 2 at 262 l 47.[2]ARB 2 at 263 l 7.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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