R v Abi - [2023] QCA 166

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABI [2023] QCA 166

PARTIES:

R
v
ABI
(appellant)

FILE NO/S:

CA No 83 of 2023
DC No 731 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 18 April 2023 (Rosengren DCJ)

DELIVERED ON:

22 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

10 July 2023

JUDGES:

Bond and Flanagan JJA and Bradley J

ORDER:

Appeal against conviction be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant pleaded not guilty to 13 counts of indecent treatment of a child under 16 years – where the 13 counts related to five distinct occasions of sexual dealings with the same complainant – where a nolle prosequi was entered in relation to Count 6 – where the appellant was found guilty of Counts 1, 2, 3, 4, 5, 7, 8, 9 and 10, but not guilty of Counts 11, 12 and 13 – where the appellant relies on three alleged inconsistencies in the complainant’s evidence – where the inconsistencies identified by the appellant are of the type one would expect in a case involving historical sexual offending – where none of the inconsistencies constitute “unchallenged evidence” – whether the verdicts of the jury are unreasonable, or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the complainant’s evidence in relation to Counts 11 and 12 was of a different quality to that given in relation to the earlier counts – where the jury could reasonably have considered that the complainant’s recollection of the offending constituting Count 13 was not sufficiently clear for them to be satisfied beyond reasonable doubt of this count – whether the verdicts of guilty are inconsistent with the verdicts of not guilty in respect of Counts 11, 12 and 13

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE OF JUSTICE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant applied for leave pursuant to s 4(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) to cross-examine both the complainant and appellant’s younger daughter as to the complainant’s sexual activities with the younger daughter – where the trial judge refused leave primarily on the basis that the evidence sought to be elicited was not “a proper matter for cross-examination as to credit” – where the appellant conceded that the evidence sought to be elicited could have gone only to credit – whether the evidence sought to be elicited was “a proper matter for cross-examination as to credit” – whether the refusal of leave by the trial judge amounts to a miscarriage of justice

Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited

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 Abi

Details

AGLC: R v Abi [2023] QCA 166
Case: [2023] QCA 166
Decision Date: 22 August 2023

CaseChat Overview and Summary

In this matter, the appellant, R, appealed against his conviction and sentence for multiple counts of indecent treatment of a child under 16 years. The case came before the court following the appellant's unsuccessful application for leave to cross-examine the complainant and his younger daughter regarding the complainant's sexual activities with the younger daughter. The court was tasked with determining whether the verdicts of the jury were unreasonable or insupportable having regard to the evidence, whether the verdicts were inconsistent, and if the refusal of leave to cross-examine amounted to a miscarriage of justice.

The primary legal issues before the court were whether the verdicts were unreasonable or could not be supported considering the evidence, whether the verdicts of guilty were inconsistent with the verdicts of not guilty in respect of certain counts, and whether the trial judge's refusal of leave to cross-examine the complainant and the younger daughter amounted to a miscarriage of justice. The court considered the evidence presented and the relevant provisions of the Criminal Law (Sexual Offences) Act 1978 (Qld), specifically section 4, which deals with the special rules limiting particular evidence about sexual offences.

The court held that the appellant's appeal against conviction should be dismissed. The court found that the inconsistencies in the complainant's evidence were of the type one would expect in a case involving historical sexual offending and did not constitute "unchallenged evidence." The court also held that the jury could reasonably have considered that the complainant's recollection of the offending constituting Count 13 was not sufficiently clear for them to be satisfied beyond reasonable doubt of this count. Finally, the court found that the trial judge's refusal of leave to cross-examine the complainant and the younger daughter did not amount to a miscarriage of justice, as the evidence sought to be elicited was not a proper matter for cross-examination as to credit.

The court dismissed the appeal against conviction, upholding the appellant's convictions for Counts 1, 2, 3, 4, 5, 7, 8, 9, and 10, while acquitting the appellant for Counts 11, 12, and 13. The court found that the verdicts of the jury were not unreasonable or insupportable considering the evidence, and that there were no inconsistencies in the verdicts. The court also held that the refusal of leave to cross-examine the complainant and the younger daughter did not amount to a miscarriage of justice.

Orders

Orders of the court

Appeal against conviction be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 4 of the Act provides:“4 Special rules limiting particular evidence about sexual offencesThe following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates also to a charge of an offence other than a sexual offence against the same or any other defendant—1The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity.2Without leave of the court—(a) cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; and(b) evidence shall not be received as to the sexual activities of the complainant with any person.3The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.4Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.Example of inference about general disposition—an inference that the complainant, because of having engaged in conduct of a sexual nature, is more likely to have consented to the conduct involved in the offenceWithout prejudice to the substantial relevance of other evidence, evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged in an examination of witnesses or a trial or that is part of a sequence of acts or events that explains the circumstances in which such an offence was committed shall be regarded as having substantial relevance to the facts in issue.5Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not proper matter for cross-examination as to credit unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant’s evidence.The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity.6An application for leave under rule 2 shall be made in the absence of the jury (if any) and, if the defendant so requests, in the absence of the complainant and shall be determined after the court has allowed such submissions or evidence (sworn or unsworn) as the court considers necessary for the determination of the application.” The operation of s 4 was considered by this Court in R v Tribe.[29] Mackenzie J made the following observations:[30]“It will be seen from [s 4] that there is a blanket exclusion of evidence of general reputation with respect to chastity. There is an exclusion, unless leave is given, of evidence or cross-examination as to sexual activities. Leave is not to be given unless one [of] two circumstances exist. The first is that the evidence sought to be elicited or led has substantial relevance to facts in issue. If it has no other effect than to raise an inference about the complainant’s general disposition it is excluded. The second is where the evidence sought to be led or elicited is proper matter for cross-examination as to credit. Evidence relating to or tending to establish the complainant has engaged in sexual activities is only proper material for cross-examination if, because of special circumstances, the court considers the evidence likely to materially impair confidence in the reliability of the complainant’s evidence.”[29][2001] QCA 206.[30]R v Tribe [2001] QCA 206 at [24].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v ABI [2023] QCA 166
PARTIES:	R v ABI (appellant)
FILE NO/S:	CA No 83 of 2023 DC No 731 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 18 April 2023 (Rosengren DCJ)
DELIVERED ON:	22 August 2023
DELIVERED AT:	Brisbane
HEARING DATE:	10 July 2023
JUDGES:	Bond and Flanagan JJA and Bradley J
ORDER:	Appeal against conviction be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant pleaded not guilty to 13 counts of indecent treatment of a child under 16 years – where the 13 counts related to five distinct occasions of sexual dealings with the same complainant – where a nolle prosequi was entered in relation to Count 6 – where the appellant was found guilty of Counts 1, 2, 3, 4, 5, 7, 8, 9 and 10, but not guilty of Counts 11, 12 and 13 – where the appellant relies on three alleged inconsistencies in the complainant’s evidence – where the inconsistencies identified by the appellant are of the type one would expect in a case involving historical sexual offending – where none of the inconsistencies constitute “unchallenged evidence” – whether the verdicts of the jury are unreasonable, or cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the complainant’s evidence in relation to Counts 11 and 12 was of a different quality to that given in relation to the earlier counts – where the jury could reasonably have considered that the complainant’s recollection of the offending constituting Count 13 was not sufficiently clear for them to be satisfied beyond reasonable doubt of this count – whether the verdicts of guilty are inconsistent with the verdicts of not guilty in respect of Counts 11, 12 and 13 CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE OF JUSTICE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant applied for leave pursuant to s 4(2) of the Criminal Law (Sexual Offences) Act 1978 (Qld) to cross-examine both the complainant and appellant’s younger daughter as to the complainant’s sexual activities with the younger daughter – where the trial judge refused leave primarily on the basis that the evidence sought to be elicited was not “a proper matter for cross-examination as to credit” – where the appellant conceded that the evidence sought to be elicited could have gone only to credit – whether the evidence sought to be elicited was “a proper matter for cross-examination as to credit” – whether the refusal of leave by the trial judge amounts to a miscarriage of justice Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, cited