R v DBL

Case [2017] QCA 71

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBL [2017] QCA 71

PARTIES:

R
v
DBL
(appellant)

FILE NO/S:

CA No 250 of 2016
DC No 1594 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Date of Conviction: 29 August 2016

DELIVERED ON:

24 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2017

JUDGES:

Morrison JA and Boddice and Dalton JJ
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 – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with five counts of assault following an episode of domestic violence – where the appellant was convicted at trial of three counts and acquitted on two counts – where the trial judge directed the jury to consider each verdict individually – where a Markuleski direction was given – where the test of inconsistency is a test of logic and reasonableness – where the appellant contended that the guilty verdicts could not be reconciled with the acquittal on two counts – whether the verdicts were not supported by evidence and were inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the defence case was that one assault occurred and the prosecution’s case was that five assaults occurred – where the appellant did not give evidence at trial but a contemporaneous field recording was tendered – where the appellant contended that there was insufficient evidence for the jury to conclude that three assaults occurred – where the respondent submitted that the victim’s injuries were consistent with her having been hit more than once – where the appellant made admissions consistent with the jury’s verdict on the field tape – where counsel at trial argued those admissions were mistakes – whether a guilty verdict was open to the jury on counts 1, 3 and 5

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – where the defence of provocation was raised early in the trial as being applicable to count one or count five – where counsel identified the alleged provocation and formal directions were given – where the jury asked for a clarification of the definition of provocation – where the trial judge refused to answer that question and asked for a more precise question – where the jury returned a verdict before asking a more precise question – where the jury’s question demonstrates misunderstanding of the defence of provocation – whether provocation was an issue going to the heart of the offence – whether the previous directions were adequate – whether the trial judge’s failure to further explain provocation caused a miscarriage of justice

Criminal Code (Qld), s 668E(1A)

Alameddine v R [2012] NSWCCA 63, considered
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, followed
M v The Queen (1994)…

Continue reading R v DBL

Sign in free to access the full text

Details
AGLC
R v DBL [2017] QCA 71
Case
[2017] QCA 71
Decision Date

CaseChat Overview and Summary

In the case of R v DBL, the appellant was charged with five counts of assault following an incident of domestic violence. At trial, the appellant was acquitted on two counts and convicted on three counts. The appellant appealed against his convictions on the basis that the verdicts were inconsistent and the jury's acquittal on two counts could not be reconciled with the guilty verdicts on three counts. Additionally, the appellant argued that the evidence was insufficient to support the guilty verdicts and that the trial judge misdirected the jury on the defence of provocation.

The court was required to determine whether the verdicts were inconsistent, whether they were supported by evidence, and whether there was a misdirection or non-direction on the defence of provocation. The court found that the verdicts were not inconsistent as a matter of logic and reasonableness, and that the evidence was sufficient to support the guilty verdicts. The court also found that the trial judge's failure to further explain the defence of provocation did not cause a miscarriage of justice.

The court reasoned that the test of inconsistency is a test of logic and reasonableness, and that the verdicts were not inconsistent. The court found that the evidence, including the victim's injuries and the appellant's admissions on the field tape, was sufficient to support the guilty verdicts. The court also found that the trial judge's failure to further explain the defence of provocation did not cause a miscarriage of justice as the jury had been given adequate directions on the defence and the defence was not an issue going to the heart of the offence.

The appeal was dismissed, and the convictions were upheld. The court found that the verdicts were not inconsistent, that the evidence was sufficient to support the guilty verdicts, and that the trial judge's failure to further explain the defence of provocation did not cause a miscarriage of justice.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Constable Mills was the second officer on the scene. She also observed that KB “had some swelling to her lip”.[38][38]AB 122.Evidence of Dr Randall Dr Randall was KB’s medical practitioner. She saw KB on 13 February 2015. Her description of what she found was that KB had some abrasions to her lip, some bruising on the upper right arm and a swelling to the nostril. She also complained of pain in the jaw and lower back pain.[39][39]AB 98. In cross-examination Dr Randall said that the abrasions she found would satisfy the definition of bodily harm,[40] as would the injuries to the jaw, bruising to the upper arm and to the lower back.[41][40]AB 102.[41]AB 102-103.Statements in the police interview During the police interview, Mr DBL admitted that he hit KB with his hand on the side of her face.[42] The police officer had found some blood and asked who was bleeding. KB evidently said she was. It transpired that Mr DBL had received a cut to his finger, but not of such a scale that it called for medical treatment. He was unable to say how it was that he hurt his finger.[43][42]AB 360.[43]AB 356 lines 59 to AB 357 line 3, AB 363 line 50. Aspects of what was said in the interview included:(a)he thought they were getting back together so he had been “camping here for the last week or so”;[44](b)he and KB had been in contact and “she was supporting me, she said my head wasn’t right”;[45](c)he had had a “lot to drink”, about three or four full wine glasses;[46] that was amended to about five glasses;[47](d)during the night he discovered KB and his friend having sexual intercourse in the garage;[48] he explained that was followed by a “heated discussion” in which he asked the friend to leave but he would not do so, and KB supported the friend; the friend waited until a taxi came, then left;[49](e)the next morning he was talking to her and she started to “say things to me, like how your dad didn’t want to see you kids”;[50](f)he hit her on the side of the face with his left hand;[51](g)he was asked: “And what was the reason for that?”, he said “I was so enraged from last night”, a reference to discovering KB and his friend having sex in the garage;[52](h)he was then asked: “And what, what led up to that happening?”, he said “Her just carrying on as if last night was just a joke”;[53](i)when asked a third time: “And what brought, what brought you to that point where you’ve hit her? What was the discussion or the argument or what was happening?”, he said: “She said Daddy’s sick in the head”;[54] he then followed that with “How sick in the head can you be. You walked out in the garage and you see somebody stuck in somebody who you want”;[55] and(j)when asked where the hit happened, he said “I think it happened in the bathroom”, and in response to the question “In the bathroom?”, said “Yeah in there”; and it “happened in front of the kids”.[56][44]AB 358.[45]AB 359.[46]AB 359.[47]AB 365.[48]AB 359.[49]AB 362.[50]AB 360.[51]AB 360.[52]AB 361.[53]AB 361. In context this was a reference to KB and the friend having sex in the garage the night before.[54]The transcript reveals that the original audio recording had been edited to delete a number of matters, by agreement between the prosecution and the defence: AB 15 line 36 to AB 16 line 6. No objection was taken to any part of the edited version of the recorded interview being played, and the recording became Ex 1. That meant that Mr DBL’s statement to the police officer, that KB had said various things including that relevant to the provocation argument (“Daddy’s sick in the head”), was admitted without objection to the fact that it was unsworn and hearsay.[55]AB 363.[56]AB 361-362.Discussion

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.