R v ABD

Case [2019] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABD [2019] QCA 72

PARTIES:

R
v
ABD
(appellant)

FILE NO/S:

CA No 123 of 2018
DC No 30 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Kingaroy – Date of Conviction: 24 April 2018 (Long SC DCJ)

DELIVERED ON:

3 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2018

JUDGES:

Sofronoff P and Philippides and McMurdo JJA

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, three counts of indecent treatment of a child under 12, under care, three counts of rape and one count of involving a child in making child exploitation material – where the appellant appeals against those convictions on the ground that the trial judge erred in failing to direct the jury as to lies allegedly told by the appellant (ground 1) – where the appellant was said to have lied about whether he owned a utility – where the trial judge did not give an Edwards direction – where the appellant submitted that notwithstanding the prosecutor’s contention that the lie was not relied on as an Edwards lie, the manner in which the relevant passages of interview were presented to the jury, together with the submissions made, suggested to the jury that the appellant told a deliberate untruth which revealed a consciousness of guilt – where defence counsel did not seek an Edwards direction at trial – whether the trial judge should have given an Edwards direction – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of one count of maintaining an unlawful sexual relationship with a child, three counts of indecent treatment of a child under 12, under care, three counts of rape and one count of involving a child in making child exploitation material – where the appellant appeals against those convictions on the ground that the trial judge erred in failing to direct the jury in relation to post offence conduct (ground 2) – where the complainant had disclosed the offending to others and the appellant then directed the complainant to tell those others that she had fabricated the allegations – where the appellant submitted that there was a real risk that the jury may have attributed the appellant’s behaviour to consciousness of guilt when an innocent explanation for this post offence conduct existed – where the trial judge did not give a direction in relation to post offence conduct – whether the absence of a direction informing the jury of how they could use the post offence conduct of the appellant deprived the appellant of a fair chance…

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AGLC
R v ABD [2019] QCA 72
Case
[2019] QCA 72
Decision Date

CaseChat Overview and Summary

The appellant, who was convicted of multiple sexual offences involving a child, appealed against the convictions. The appeals were predicated on three grounds: firstly, that the trial judge erred by not directing the jury on alleged lies made by the appellant; secondly, that the trial judge should have directed the jury on the appellant's post-offence conduct; and thirdly, that the trial judge should have ruled a pretext telephone conversation between the appellant and the complainant inadmissible. The central issue in the first ground of appeal was whether the trial judge should have directed the jury on the appellant's alleged lies. The appellant argued that the trial judge should have given an Edwards direction, which cautions the jury against inferring guilt from the appellant's untruthfulness. The prosecution contended that it did not rely on the alleged lies as evidence of guilt. The court held that an Edwards direction was not necessary, as there was no suggestion that the jury might infer guilt from the lies, and therefore no miscarriage of justice occurred.

The second ground of appeal focused on the appellant's post-offence conduct, specifically directing the complainant to tell others that she had fabricated the allegations. The appellant argued that the trial judge should have directed the jury on the potential innocent explanations for this conduct. The court considered whether the omission of such a direction deprived the appellant of a fair chance of acquittal. The court concluded that the absence of a direction on the appellant's post-offence conduct did not result in a miscarriage of justice. The court found that the appellant's conduct was properly before the jury, and the jury was left to determine the weight to be given to this evidence.

The final ground of appeal concerned a pretext telephone conversation between the appellant and the complainant. The appellant argued that the conversation should have been excluded as its prejudicial effect outweighed its probative value. The court found that the trial judge did not err in admitting the conversation. The court reasoned that the conversation was relevant to the appellant's state of mind and his relationship with the complainant, and it was not unduly prejudicial.

In conclusion, the court dismissed the appeal. The court held that the trial judge did not err in failing to give an Edwards direction, nor in omitting to direct the jury on the appellant's post-offence conduct. Additionally, the court found that the trial judge correctly admitted the pretext telephone conversation. Therefore, the appeal was dismissed, and the convictions were upheld.

Orders

Orders of the court

The appeal be 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

The respondent submitted that the prosecutor relied on the appellant’s police interview primarily to enable the jury to assess properly the appellant’s veracity in his denials of the allegations.[58] In that respect, it was submitted that the appellant was told of the allegations against him and was acutely aware of them before he embarked on a course of “conceal[ing] things” which might tend to incriminate him. Relevantly, it was submitted that the appellant was not forthcoming as to his access to a vehicle alleged to be that in which count 9 occurred. It was argued that the prosecutor, at no time, sought to rely on the omission by the appellant as evidencing a consciousness of guilt. Further, the appellant’s statements as to the ownership of the utility, while technically truthful, were to be seen in light of the allegations known to the appellant. As such, the prosecutor properly addressed the jury as to the reasons why the jury may be circumspect in accepting the appellant’s statements where they were not otherwise supported by the complainant.[59] It was, therefore, not incumbent on the trial judge to direct the jury as to how they may use the statements, which were never categorised as lies and could only possibly be said to be a lie by specific omission.[60][58]AB1 at 52.46-57.43.[59]AB1 at 57.42.[60]Although it must be recognised that in the context of many, if not all, prosecutions a denial of the offending (including a plea of not guilty) must be advanced by the prosecution as an untruth.Consideration I am unable to accept the appellant’s submissions on ground 1. The thrust of this ground of appeal was that an Edwards direction should have been given. There was no complaint in the written submissions that there was a miscarriage of justice because the trial judge did not give an appropriately worded Zoneff direction. The latter was raised faintly in oral submissions before this Court in this way: “There’s the other direction, being the Zoneff direction that would have perhaps provided a ceiling on the way in which the jury could have used the lie”.[61] The Zoneff direction is to the effect that any conclusion that the appellant deliberately told lies was relevant only to his credibility and the jury should not follow a process of reasoning to the effect that, just because a person is shown to have told a lie about something, that is evidence of guilt.[62][61]Appeal Transcript 1-11.[62]See Benchbook Direction No 39.1. In my view, there was no miscarriage of justice in the trial judge not giving an Edwards direction. As Gleeson CJ and Hayne J stated in Dhanhoa:[63]“It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.” (citations omitted)[63](2003) 217 CLR 1 at [34].