R v Ben

Case [2024] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEN [2024] QCA 179

PARTIES:

R
v
BEN
(appellant)

FILE NO/S:

CA No 239 of 2023
DC No 10 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Gympie – Date of Conviction: 20 October 2023 (Jarro DCJ)

DELIVERED ON:

Date of Orders: 27 September 2024
Date of Publication of Reasons: 1 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2024; further submission received 2 September 2024 (appellant) and 6 September 2024 (respondent)

JUDGES:

Bond and Dalton and Boddice JJA

ORDERS:

Date of Orders: 27 September 2024

1.   The appeal is allowed.

2.   The verdict of guilty on count 2 be set aside.

3.   A verdict of acquittal is entered on count 2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was acquitted on five counts of rape and found guilty by majority verdict on one count of choking – where the choking was alleged to have been committed in the course of the sexual offending – whether the verdicts were inconsistent – where there were internal inconsistencies in the complainant’s evidence – whether the jury must have had a reasonable doubt about the appellant’s guilt such that the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether the trial judge’s direction regarding the use of preliminary complaint evidence might have caused the jury to think they could use preliminary complaint as to sexual matters only as to credit but could use preliminary complaint as to choking in an unrestricted way

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the complainant gave evidence of another uncharged act of choking – where the complainant gave evidence her breathing was restricted only in relation to the charged act of choking – where, as the jury listened to the entirety of the evidence in the trial, there was nothing to alert them to the fact that to amount to a choking at law, breath must be restricted – whether the trial judge’s failure to make clear to the jury that there was only one charged act of choking, and that the evidence needed to support the charged rather than the uncharged act, caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL – WHERE CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED – where the choking was bound up in the other alleged offending such that, even if it were possible to lead evidence only of the choking, it would produce an artificial narrative – where there is nothing tying the Crown’s evidence to the charged act of choking rather than the uncharged act – whether the Court should…

Continue reading R v Ben

Sign in free to access the full text

Details
AGLC
R v Ben [2024] QCA 179
Case
[2024] QCA 179
Decision Date

CaseChat Overview and Summary

In the matter of R v Ben, the appellant faced charges including multiple counts of rape and one count of choking. The appellant was acquitted on the rape charges but found guilty by a majority verdict on the choking count. The case involved an appeal against the conviction on the choking charge, focusing on the consistency of the verdicts, the adequacy of jury directions, and the potential for a miscarriage of justice. The Court of Appeal was tasked with determining whether the verdicts were reconcilable and whether there were any legal errors that necessitated a new trial or a directed acquittal. The appeal hinged on whether the verdict was unreasonable or insupportable given the evidence, and whether there were any misdirections or omissions by the trial judge that might have affected the jury's deliberations.

The primary legal issue before the court was whether the verdict of guilty on the choking charge was inconsistent with the acquittals on the rape charges. The court considered the internal inconsistencies in the complainant's evidence and whether these inconsistencies could have led the jury to reasonable doubt about the appellant’s guilt on the choking charge. Additionally, the court examined whether the trial judge’s directions regarding the use of preliminary complaint evidence might have misdirected the jury, particularly in distinguishing between the use of such evidence for credit issues versus its use for the choking charge. The court also assessed whether the trial judge failed to adequately inform the jury that only one act of choking was charged, and whether this omission contributed to a miscarriage of justice.

The court concluded that the verdict of guilty on the choking charge was unreasonable, given the inconsistencies in the complainant’s evidence and the lack of clear direction to the jury about the specific act of choking that was charged. The court found that the trial judge’s directions may have led the jury to consider evidence of choking in an unrestricted manner, which was not aligned with the specific charge. The court determined that the choking offence was bound up with the other alleged offences, making it difficult to separate the choking act from the broader context of the alleged offending. Consequently, the court exercised its discretion to quash the conviction and direct a verdict of acquittal on the choking charge.

The final orders of the court were that the appeal was allowed, the verdict of guilty on count 2 (the choking charge) was set aside, and a verdict of acquittal was entered on count 2.

Orders

Orders of the court

1. The appeal is allowed.

2. The verdict of guilty on count 2 be set aside.

3. A verdict of acquittal is entered on count 2.

Background

Background to the litigation

Spigelman CJ started with the proposition that Jones applied the law in M and MacKenzie, [5]–[7], and then said:“It is against this background, that the test for an unreasonable verdict – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – must be applied to the whole of the facts and circumstances of a particular case.” – [10] (my underlining). The underlined words are broader than those used in M.They involve the appellate court looking at “the whole of the facts and circumstances of a particular case”, not just “the whole of the evidence”, cf the test in M, above. In the event, the New South Wales Court of Criminal Appeal disposed of Markuleski on the basis that there were factual matters concerning the sixth count (acquittal verdict) which pertained only to that count, and thus found the verdicts reconcilable in terms of the traditional MacKenzie test – [140]–[146]. The broader formulation from Markuleski was used in one of the judgments in MFA, [34]. After MFA, in R v TK Simpson J[14] wrote that the test at [10] of Spigelman CJ’s judgment in Markuleski was distinct from the M test leading to a wider enquiry than that which was established in M – [126]–[128].The argument on unreasonable verdict in this case adopted that approach. The submission amounted to an assertion that a species of “Jones unreasonableness” was made out notwithstanding that the different verdicts given by the jury in this case could be reconciled in terms of MacKenzie, and that there was evidence before the jury upon which they could have reasonably convicted in accordance with the test in M.[14]The dissentient in Markuleski. The formulation of the test in Markuleski at [10] was in the context that the relevant law to be applied was found in M and MacKenzie. Unreasonableness is a protean concept. The appeal in M centred on the evidence before the jury, and that in Markuleski centred on the evidence and verdicts below. The words used by Spigelman CJ at [10] of Markuleski are not, in my view, a statement of a new principle, but the adaptation of the principle in M to encompass the grounds of appeal in Markuleski. The words were used by some of the judges in MFA where again the appeal was based on the evidence and verdicts below. This usage was in a context where the High Court in MFA significantly confined the statements in Jones and applied the MacKenzie inconsistency test to determine the case where there were significant credibility and reliability issues. In the present case, according to the principles in MacKenzie, the verdict on the choking count was not factually inconsistent with the verdicts of acquittal on the rape counts; the different verdicts can be accounted for in a logical and reasonable way. First, it is obvious to say that the choking count was an allegation of violence, rather than sexual violence, and in that way was different in its nature from the rape counts on the indictment. Although there was some suggestion in the evidence that the complainant and appellant had, throughout the course of their relationship, engaged in risky sexual activity, and had a safe word, there was no evidence that they engaged in consensual choking as part of sexual activity or that the factual basis for count 2 was a choking as part of sexual activity. In those circumstances the jury had to consider whether or not the appellant had a reasonable, honest but mistaken belief in relation to consent to the sexual activity charged. However, they had no occasion to consider that same defence in relation to the choking.

Evidence

Evidence Before The Court

There are other parts of the cross-examination in which the complainant contradicted the sequence of events which she had given in evidence-in-chief.Other Crown Evidence The Crown called NJ. She is also Korean and had been in Australia since 2017. She met the complainant in around 2019 because they worked together. At the time of the alleged offending she lived about two minutes by car from the complainant and the appellant. NJ said that she received a telephone call from the complainant on the morning of the alleged offending. The complainant was crying and asking NJ to help her. About 10 minutes later NJ arrived at the complainant’s house and saw the complainant in front of her house. She described her as “extremely nervous and … shaking”. She was wearing pyjamas and was barefoot. She was wearing a jumper and was carrying her MacBook and her phone. Before the telephone call which NJ picked up, she had missed 14 calls from the complainant. Her evidence was she was asleep when she became aware that her phone was ringing and took the call from the complainant. SS said that she was asleep at home in a house she shared with NJ on the morning of the alleged offending. NJ woke her up that morning and she went with NJ to the complainant’s home. They arrived just before 4.00 am. SS said that they texted the complainant just before they arrived and the complainant ran out. She remembered that the complainant was barefoot and looked “extremely sad and scared”. SZ gave evidence that she rented a room in the same house as the complainant and appellant at the relevant time. Her bedroom was on the other side of the hallway from the bedroom shared by the appellant and complainant; she estimated it was around 1.5m away. On the day before the offending she came home from work about 7.00 pm. At some point after that, “dinner time”, friends of the complainant arrived at the house and she joined them. The complainant cooked and they were together in the dining room eating and drinking. She spent around 30 or 40 minutes with them, perhaps between 8.30 pm to 9.00 pm, and then left the table. She went to her room about 10.00 pm. They were drinking Korean beer, a bottle of whisky and some spirit mixers in cans. The complainant’s friends left about 11.00 pm. After that she thought the complainant and appellant were in their bedroom talking peacefully, but at some point in time they raised their voices, arguing. This was perhaps 15 minutes after the complainant’s friends left. She could hear the complainant crying and the appellant trying to comfort her. She thought the complainant was refusing the appellant access to the bedroom, saying that she did not want him in the bedroom. She thought perhaps the complainant was vomiting and that the appellant was comforting her. They walked out to the dining room and continued arguing. She thought that after midnight things started to get quiet. After midnight she thought the appellant was in the dining room talking on the phone with one of his friends quite loudly and there was music playing in the dining room. Everything went quiet about 1.00 am.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.