R v HBD - [2011] QCA 338

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBD [2011] QCA 338

PARTIES:

R
v
HBD
(appellant)

FILE NO/S:

CA No 199 of 2011
DC No 1768 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

25 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2011

JUDGES:

Muir JA, Margaret Wilson AJA and North J
Separate reasons for judgment of each member of the Court, Margaret Wilson AJA and North J concurring as to the order made, Muir JA dissenting in part

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of three counts of indecent treatment of a child under 16 who was a lineal descendant, under care – where the appellant was acquitted of one count of rape – whether the guilty verdicts are inconsistent with the acquittal of the count of rape

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – CONSENT – whether the complainant consented – whether consent of the child was in issue – where consent is not an element of the offences the appellant was convicted of – where consent is an element for the offence of rape of which the appellant was acquitted – where the trial judge carefully and emphatically directed the jury to scrutinise the evidence with great care – whether it is possible, consistent with the respect the law assigns to juries, to reconcile the verdicts

Criminal Code 1899 (Qld), s 348
Evidence Act 1977 (Qld), s 93A

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v SBL [2009] QCA 130, considered
R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

COUNSEL:

M Johnston for the appellant
R G Martin SC for the respondent

SOLICITORS:

Watling Fowler Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I gratefully accept North J’s recitation of the facts and statement of relevant principle but am unable to agree that the appeal should be dismissed. Consent was not an issue on the trial. The alleged acts of sexual handling constituting counts 1 to 4 inclusive were denied by the appellant.

The trial judge directed that the jury had to be satisfied beyond reasonable doubt that the alleged digital penetration had to have taken place without the consent of the complainant “freely and voluntarily given”. There was nothing in…

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 HBD

Details

AGLC: R v HBD [2011] QCA 338
Case: [2011] QCA 338
Decision Date: 25 November 2011

CaseChat Overview and Summary

In the case of R v HBD, the appellant faced multiple charges related to the indecent treatment of a child under the age of 16 who was a lineal descendant and under the care of the appellant. The appellant was convicted on three counts of indecent treatment but acquitted of a count of rape. The dispute in this case revolves around whether the guilty verdicts on the indecent treatment charges can coexist with the acquittal on the rape charge. The appeal was heard in the relevant appellate court.

The primary legal issue before the court was whether the appellant's conviction for indecent treatment could be reconciled with the acquittal on the charge of rape, given that consent was an element of the offence of rape but not of the indecent treatment offences. The court had to consider whether it was possible to logically reconcile the jury's verdicts, taking into account the trial judge's directions to the jury to carefully scrutinise the evidence.

The court held that while the verdicts appeared to be inconsistent on their face, it was not the role of the appellate court to speculate on the reasoning of the jury. The court emphasised the principle that the law respects the independence of the jury's decision-making process. The court concluded that it was possible, consistent with the respect the law assigns to juries, to reconcile the verdicts. The appellant's appeal was dismissed, affirming the original convictions.

The court did not alter the convictions on the counts of indecent treatment, maintaining the integrity of the jury's verdicts and the principles of respect for the jury's role in the criminal justice system.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v HBD [2011] QCA 338
PARTIES:	R v HBD (appellant)
FILE NO/S:	CA No 199 of 2011 DC No 1768 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2011
JUDGES:	Muir JA, Margaret Wilson AJA and North J Separate reasons for judgment of each member of the Court, Margaret Wilson AJA and North J concurring as to the order made, Muir JA dissenting in part
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of three counts of indecent treatment of a child under 16 who was a lineal descendant, under care – where the appellant was acquitted of one count of rape – whether the guilty verdicts are inconsistent with the acquittal of the count of rape CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – CONSENT – whether the complainant consented – whether consent of the child was in issue – where consent is not an element of the offences the appellant was convicted of – where consent is an element for the offence of rape of which the appellant was acquitted – where the trial judge carefully and emphatically directed the jury to scrutinise the evidence with great care – whether it is possible, consistent with the respect the law assigns to juries, to reconcile the verdicts Criminal Code 1899 (Qld), s 348 Evidence Act 1977 (Qld), s 93A Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, considered Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited R v SBL [2009] QCA 130, considered R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited
COUNSEL:	M Johnston for the appellant R G Martin SC for the respondent
SOLICITORS:	Watling Fowler Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent