R v Bed - [2023] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

R v BED [2023] QCA 196

PARTIES:

R
v
BED
(appellant)

FILE NO/S:

CA No 154 of 2021
DC No 138 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 11 June 2021 (Smith DCJA)

DELIVERED ON:

29 September 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2023

JUDGES:

Bond JA and Gotterson AJA and Boddice AJA

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – MISDIRECTION OR NON-DIRECTION – where the appellant was tried by a jury on two counts of indecent treatment of a female child under 16 – where the first count alleged the aggravating circumstance that the child was under 12 – where the jury acquitted the appellant of count 1 but convicted him of count 2 – where the appellant alleged the verdict was unreasonable on the basis that it was internally inconsistent with the acquittal on the first count – whether the verdicts were inconsistent – whether the verdicts can be reconciled by having regard to the relevant facts alleged in the counts and the evidence available to the jury at trial

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – IMMATERIALITY OF MISDIRECTION OR NON-DIRECTION – where the respondent’s closing address had asked the jury to consider why the complainant would “make up” the alleged offending – where the trial judge reminded the jury that the prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt – where the trial judge directed the jury to scrutinise the complainant’s evidence for truth and accuracy – whether the jury had been misled into engaging in illogical reasoning – whether the direction given by the trial judge addressed this risk

Evidence Act1977 (Qld), s 21AK, s 93A

R v Bevinetto [2019] 2 Qd R 320; [2018] QCA 219, cited
R v DBV[2021] QCA 227, cited
R v Silcock [2022] QCA 234, cited

COUNSEL:

S J Hamlyn-Harris for the appellant
N W Crane for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: Between 9 and 11 June 2021, the appellant was tried by a jury in the District Court at Cairns on an indictment alleging two counts of indecent treatment of a female child under 16 contrary to s 210(1)(a) of the Criminal Code (Qld). The first count alleged the aggravating circumstances that the child was under 12 (provided for in s 210(3) of the Criminal Code) and under care (provided for in s 210(4) of the Criminal Code). The second count alleged only the latter aggravating circumstance.
The complainant on each count was ABW, a female Torres Strait Islander child born on 9 February 2007. At the time of…

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 Bed

Details

AGLC: R v Bed [2023] QCA 196
Case: [2023] QCA 196
Decision Date: 29 September 2023

CaseChat Overview and Summary

The case of R v Bed involved an appeal against a conviction by the appellant, who was found guilty of one count of indecent treatment of a female child under 16, but acquitted on another count which included an aggravating circumstance that the child was under 12. The appellant challenged the verdict, arguing that it was unreasonable and internally inconsistent with the acquittal on the first count. The appellant also claimed that the trial judge's direction to the jury may have misled them into illogical reasoning, particularly in relation to the prosecution's burden of proof and the scrutiny of the complainant's evidence.

The court had to determine whether the verdicts were inconsistent and whether they could be reconciled by considering the facts alleged in the counts and the evidence available to the jury at trial. The court also had to assess whether the jury had been misled by the trial judge's direction and whether this direction sufficiently addressed the risk of illogical reasoning.

The court found that the trial judge's direction adequately addressed the risks associated with the jury's scrutiny of the complainant's evidence, and that there was no risk that the jury might not have considered the possibility that the complainant's evidence might have been mistaken rather than dishonest. The court concluded that the verdicts could be reconciled by considering the facts and evidence available to the jury, and that there was no inconsistency that warranted setting aside the conviction.

The appeal was dismissed, and the conviction was upheld. The judges agreed with the conclusion that the appeal should be dismissed, and that the conviction was consistent with the evidence and the trial judge's direction to the jury.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I mention that direction not because there is any criticism of it, but because this Court too must have regard to such considerations when it assesses the evidence given at trial, of course bearing in mind the fact that the jury has had the benefit of having seen and heard the witnesses.The evidence of ABW In her recorded s 93A evidence, ABW told the interviewing police officer, Sgt Wilson, that when she first went to the school the appellant “touched my soosoo”. (It was common ground that this was a reference to her breast.) She said that this was her first year at the school. She said that she did not know when she first arrived at the school; that it was not at the start of the school year, but that she arrived on a Wednesday, and the first time the appellant touched her was on the next day, Thursday, which was her “duty day”, when she was required to set up tables. She said that the appellant would touch her like that “every Sunday night, Sunday night, or when I get extra [duty] day too.” She was asked further detail about the first occurrence of the touching. She was standing in the kitchen. She had come to “take the butter for the sandwich”, when he also came into the kitchen and shut the back door. She tried to go, but he stopped her by putting a hand on the wall. He was standing on the doorway. Then “he touched my soosoo”, indicating her left breast. The touch lasted a couple of seconds. She pushed his hand down. She went to her sister TRM’s room. Her sister had seen her “freaking out” and asked her what was going on. ABW said, “Well I only told her that [INDISTINCT] touched me um, soosoo. Then she told my eldest sister [TLA]. And [TLA] told aunty Madge.” In her pre-recorded trial evidence, ABW identified photographs of the places to which she had referred in her s 93A statement. By reference to the photographs, she distinguished between the kitchen and a room she called the food room, and which abutted the kitchen. She again said that the first time the appellant touched her was inside the kitchen. She said that she was in the kitchen after she went back to take the butter, and the appellant followed her. He closed the back door. She was standing up in front of the fridge, looking towards the shelves. He was “standing up sideways” and facing towards the shelves. She later described him as standing “next to her”, slightly to her side but slightly to the back. He made a small turn towards her, then he touched her on the soosoo. He put his hand over her shoulder onto her breast. As mentioned, ABW had made plain at the outset of her police interview that the appellant had touched her soosoo more than once. When asked to identify the second time that it happened, ABW answered that “he keeps on doing that, touch my soosoo”. When asked “Was there any times where it was different?”, she replied, “No, it was always in the kitchen”. She was pressed as to when the second time happened. Initially she said that it happened on a Friday, but then said she forgot. Later she said the second time happened on the Monday after the first time.

Decision

Reasons for decision

In the present case the direction given by the trial judge addressed all these risks. That much was acknowledged by the appellant. The appellant suggested, however, that the direction was insufficient because it did not alert the jury to the possibility that ABW might have been mistaken rather than dishonest. The respondent submitted, and I agree, that given that the direction immediately followed a warning consistent with Robinson v The Queen[4] which required the jury to scrutinize ABW’s evidence closely and only act on it if convinced beyond reasonable doubt both of its truth and accuracy, there was no risk that the jury might have not considered the possibility that ABW’s evidence might have been mistaken rather than dishonest. Appeal ground 2 must be rejected.[4](1999) 197 CLR 162.Conclusion The appeal should be dismissed. GOTTERSON AJA: I agree with the conclusion of Bond JA that this appeal should be dismissed and with his Honour’s reasons for it. BODDICE AJA: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

The trial judge directed the jury to scrutinize the evidence of ABW with care, and in doing so gave the directions which must be considered in relation to appeal ground 2. His Honour said:“Now, members of the jury, in this case I warn you to scrutinize the evidence of the complainant with care before you may act on it. You must consider the circumstances relevant to its evaluation and pay heed to this warning before you may be satisfied beyond reasonable doubt of its truth and accuracy. A number of circumstances [are] to be considered in this case. Firstly, there was no corroborating evidence for her account. On her account it occurred in a reasonably busy area. Secondly, you might recall that those police interviews were very hard to hear. It was very hard to pick up some of the things she was saying, that’s something you will need to pay specific regard to when assessing her evidence with care.You should only act on her evidence if after considering it with that warning in mind and all of the other evidence you are convinced of its truth and accuracy. During the address the prosecutor said there was no reason for her to lie about this, and [defence counsel] by way of response said, “Well, children sometimes do tell false stories.” All right. Bear in mind this, any failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist. If such a motive existed, a defendant may not know of it. Sometimes a wrong account is given for many reasons we can never discover, and there may be reasons why a person might make a false complaint. If you are not persuaded that any motive to lie on the part of the complainant has been established, it does not necessarily mean she is truthful. It remains necessary for you to satisfy yourselves that she is truthful.Now, [the appellant], did not give or call evidence, that is his right. He is not bound to give or call evidence. He’s entitled to insist that the prosecution proves the case against him, if it can. The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt. And the fact he did not give evidence is not evidence against him. It does not constitute any admission of guilt by conduct, and it may not be used to fill in any gaps in the evidence led by the prosecution. It proves nothing at all and you must not assume that because he did not give evidence that adds, in some way, to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt. And most certainly does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove the guilt of the defendant beyond a reasonable doubt.”Consideration of appeal ground 1 In R v Silcock this Court summarised the law concerning inconsistent verdicts, in these terms: [1][1]R v Silcock [2022] QCA 234 at [73] (per Bowskill CJ and Bond and Flanagan JJA).“In R v GAW [2015] QCA 166 Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) by reference to M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439 and MacKenzie v The Queen (1996) 190 CLR 348 summarised the principles concerning inconsistent verdicts as follows:“The principles concerning inconsistent verdicts are well-established. Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:‘... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.’In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.””

CITATION:	R v BED [2023] QCA 196
PARTIES:	R v BED (appellant)
FILE NO/S:	CA No 154 of 2021 DC No 138 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 11 June 2021 (Smith DCJA)
DELIVERED ON:	29 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2023
JUDGES:	Bond JA and Gotterson AJA and Boddice AJA
ORDER:	Appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – MISDIRECTION OR NON-DIRECTION – where the appellant was tried by a jury on two counts of indecent treatment of a female child under 16 – where the first count alleged the aggravating circumstance that the child was under 12 – where the jury acquitted the appellant of count 1 but convicted him of count 2 – where the appellant alleged the verdict was unreasonable on the basis that it was internally inconsistent with the acquittal on the first count – whether the verdicts were inconsistent – whether the verdicts can be reconciled by having regard to the relevant facts alleged in the counts and the evidence available to the jury at trial APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – IMMATERIALITY OF MISDIRECTION OR NON-DIRECTION – where the respondent’s closing address had asked the jury to consider why the complainant would “make up” the alleged offending – where the trial judge reminded the jury that the prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt – where the trial judge directed the jury to scrutinise the complainant’s evidence for truth and accuracy – whether the jury had been misled into engaging in illogical reasoning – whether the direction given by the trial judge addressed this risk Evidence Act1977 (Qld), s 21AK, s 93A R v Bevinetto [2019] 2 Qd R 320; [2018] QCA 219, cited R v DBV[2021] QCA 227, cited R v Silcock [2022] QCA 234, cited
COUNSEL:	S J Hamlyn-Harris for the appellant N W Crane for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent