R v HBJ - [2014] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

R v HBJ [2014] QCA 2

PARTIES:

R
v
HBJ
(appellant)

FILE NO/S:

CA No 139 of 2013
DC No 106 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

7 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013

JUDGES:

Fraser and Morrison JJA and Applegarth 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 the appellant was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child under 16 years – where the complainant was the appellant’s daughter – where the trial judge accepted a submission by the appellant that he had no case to answer in respect of a count of rape and the prosecution subsequently entered a nolle prosequi in respect of that count – where the appellant argued that the complainant’s evidence was unreliable, lacking in probative force and contained marked discrepancies and manifest inadequacies – where the trial judge reminded the jury of the differences between the complainant’s first police interview and the statements she made during the second police interview and her pre-recorded evidence – where the appellant did not give or call evidence –whether it was open on the whole of the evidence for the jury to be satisfied of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant argued that the directions given by the trial judge about the offence of maintaining were inadequate – where the appellant contended that the trial judge should have given the jury an instruction about the nature of acts that would constitute an unlawful sexual act – whether the directions given by the trial judge were sufficient to avoid any risk the appellant was convicted on the basis of acts which were not sexual and indecent in nature

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – MATTERS AVAILABLE TO JURY IN JURY ROOM – where, after the jury retired to consider their verdict, they requested copies of the recordings of the complainant’s police interviews and pre‑recorded evidence and a copy of the complainant’s mother’s statement to be available in the jury room – where the appellant’s solicitor acquiesced to the jury’s request – where the trial judge told the jury that the recordings would be provided but the complainant’s mother’s statement could only be read to them as it was not in evidence – where the jury reached a verdict after the recordings were permitted in the jury room – where the appellant argued that allowing the recordings to be given to the jury to view in the…

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 HBJ

Details

AGLC: R v HBJ [2014] QCA 2
Case: [2014] QCA 2
Decision Date: 7 February 2014

CaseChat Overview and Summary

The appellant, HBJ, appealed against his conviction of maintaining an unlawful sexual relationship with a child under 16 years, being his daughter. The appeal against conviction was based on the contention that the verdict was unreasonable or not supported by the evidence. The appellant also raised issues about alleged misdirections and non-directions by the trial judge, irregularities in relation to the jury, and potential miscarriages of justice.

The court considered whether the trial judge's directions about the offence of maintaining were adequate and whether the judge should have instructed the jury about the nature of acts that would constitute an unlawful sexual act. The court also considered whether the appellant's argument about the unreliability of the complainant's evidence was valid. The court concluded that the trial judge's directions were sufficient and that the appellant's argument about the unreliability of the complainant's evidence was not persuasive.

The court further considered whether allowing the recordings of the complainant's police interviews and pre-recorded evidence to be available to the jury in the jury room amounted to an irregularity or a miscarriage of justice. The court held that there was no irregularity and that the appellant's argument about a miscarriage of justice was not made out. The court also held that the trial judge's remarks in summing up did not amount to a miscarriage of justice. The appeal against conviction was dismissed.

The final orders of the court were that the appeal against conviction 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 HBJ [2014] QCA 2
PARTIES:	R v HBJ (appellant)
FILE NO/S:	CA No 139 of 2013 DC No 106 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	7 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2013
JUDGES:	Fraser and Morrison JJA and Applegarth 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 the appellant was convicted after a trial of one count of maintaining an unlawful sexual relationship with a child under 16 years – where the complainant was the appellant’s daughter – where the trial judge accepted a submission by the appellant that he had no case to answer in respect of a count of rape and the prosecution subsequently entered a nolle prosequi in respect of that count – where the appellant argued that the complainant’s evidence was unreliable, lacking in probative force and contained marked discrepancies and manifest inadequacies – where the trial judge reminded the jury of the differences between the complainant’s first police interview and the statements she made during the second police interview and her pre-recorded evidence – where the appellant did not give or call evidence –whether it was open on the whole of the evidence for the jury to be satisfied of the appellant’s guilt CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant argued that the directions given by the trial judge about the offence of maintaining were inadequate – where the appellant contended that the trial judge should have given the jury an instruction about the nature of acts that would constitute an unlawful sexual act – whether the directions given by the trial judge were sufficient to avoid any risk the appellant was convicted on the basis of acts which were not sexual and indecent in nature CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – MATTERS AVAILABLE TO JURY IN JURY ROOM – where, after the jury retired to consider their verdict, they requested copies of the recordings of the complainant’s police interviews and pre‑recorded evidence and a copy of the complainant’s mother’s statement to be available in the jury room – where the appellant’s solicitor acquiesced to the jury’s request – where the trial judge told the jury that the recordings would be provided but the complainant’s mother’s statement could only be read to them as it was not in evidence – where the jury reached a verdict after the recordings were permitted in the jury room – where the appellant argued that allowing the recordings to be given to the jury to view in the…