R v FBA

Case [2021] QCA 142

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBA [2021] QCA 142

PARTIES:

R
v
FBA
(appellant)

FILE NO/S:

CA No 163 of 2020
DC No 1226 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 5 August 2020 (Dick SC DCJ)

DELIVERED ON:

16 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2021

JUDGES:

Sofronoff P and McMurdo JA and Boddice J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where a jury found the appellant guilty of four counts of choking – whether evidence of previous acts of domestic violence was erroneously admitted as relationship evidence – whether the first direction to the jury to the effect that the relevance of that evidence was limited to show that these events were not out of the blue and that, even if it was accepted by the jury it did not make it improbable that the appellant had committed the offences, was negated by the subsequent direction that the jury could not use that evidence unless satisfied beyond reasonable doubt that those other acts occurred and that they could not “infer only from the fact that the other acts occurred” that the appellant committed the offences – whether the Judge erred in failing to give the jury a Robinson direction – whether the trial miscarried by reason of the inability to hear the complainant’s evidence in chief

Evidence Act 1977 (Qld), s 130, s 132B(2)

Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, followed
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

S Robb for the appellant
D Kovac for the respondent

SOLICITORS:

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

  1. SOFRONOFF P:  The facts and issues in this appeal have been set out comprehensively in the reasons of Boddice J so it is unnecessary for me to recite them.  I agree with his Honour’s reasons and conclusion in relation to ground 4.  I have come to a different conclusion about ground 1.

  2. The appellant’s amended grounds of appeal were as follows:

    “Ground 1, the learned trial judge erred, causing the trial to miscarry, in:

    (a)failing to clearly direct the jury as to the identification, purpose, and use of relationship evidence;

    (b)admitting the evidence of the complainant’s daughter that she had ‘seen bruises on mum’ as relationship evidence.

    Ground 2, the complainant’s evidence required a Robinson direction and the failure to direct in those terms caused a miscarriage of justice.

    Ground 3, the complainant’s evidence in chief was inaudible in parts, which in the circumstances of the trial, caused the trial to miscarry.

    Ground 4, when regard is had to all the evidence, the jury verdicts are unreasonable, unsafe and unsatisfactory.”

  3. The evidence about the appellant’s violent relationship…

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Details
AGLC
R v FBA [2021] QCA 142
Case
[2021] QCA 142
Decision Date

CaseChat Overview and Summary

In the case of R v FBA, the appellant was convicted by a jury of four counts of choking his domestic partner. The appellant sought to appeal his conviction on several grounds, including the alleged erroneous admission of evidence of previous acts of domestic violence, the failure to give a Robinson direction, the inability to hear the complainant's evidence in chief, and the unreasonableness of the verdict. The court considered these arguments in turn.

The court noted that evidence of a history of domestic violence in a relationship is admissible, provided it is relevant and its relevance is explained to the jury. In this case, the trial Judge had directed the jury on the limited use to which such evidence could be put. The court found that the Judge's initial direction, that the evidence was not to be used to show that it was more probable that the appellant had committed the offences, was not negated by the subsequent direction that the jury could not use the evidence unless satisfied beyond reasonable doubt that the other acts occurred. The court found that the Judge had adequately directed the jury on the use of the relationship evidence.

The court also considered whether the Judge had erred in failing to give a Robinson direction. The court found that the Judge had directed the jury on the use of the evidence of the history of domestic violence, which was the equivalent of a Robinson direction. The court found that the Judge had not erred in this regard.

The court considered whether the trial had miscarried due to the inability to hear the complainant's evidence in chief. The court found that the complainant's evidence was largely intelligible and that the trial had not miscarried on this ground.

Finally, the court considered whether the verdicts were unreasonable, having regard to all of the evidence. The court found that the complainant's evidence was not implausible and that her written retraction was explained in evidence. The court found that the jury had been properly directed and that it was open to them to be satisfied of the appellant's guilt beyond reasonable doubt.

The court dismissed the appeal.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The appellant relies on four grounds of appeal. First, the trial Judge erred in failing to clearly direct the jury as to the identification, purpose and use of relationship evidence and in admitting evidence as relationship evidence. Second, a failure to direct the jury in accordance with a Robinson direction caused a miscarriage of justice. Third, the complainant’s evidence in chief was inaudible in parts and caused the trial to miscarry. Fourth, that the verdicts were unreasonable, having regard to all of the evidence.Background The appellant was born on 31 January 1978. He was aged 41 at the commission of the offence and aged 42 at sentence. The complainant in each count was his then domestic partner. They had been in a relationship for approximately 18 months.Offences Each offence was committed on or about 22 October 2019. Each offence was a domestic violence offence. At the trial, it was admitted that the appellant was in a domestic relationship with the complainant at the time of each offence. The Crown provided particulars of each count. Relevantly, those particulars alleged that the appellant applied pressure to the neck and/or throat of the complainant, using his hands or his forearms, as a result of which the complainant’s breathing was hindered or stopped and that the appellant’s actions were unlawful and the complainant did not consent to those actions. The material difference in each particular was that count one occurred in the main bedroom, whilst the complainant was packing her bags; count two occurred in the lounge area, following an argument about a tobacco pouch; count three occurred in or near the bathroom; and count four occurred in the appellant’s daughter’s bedroom.Evidence The complainant met the appellant in 2018. They developed their relationship through their church. Although they were in a domestic relationship, they lived at different residences. On 20 October 2019, the complainant travelled from her residence on the Gold Coast to the appellant’s residence at Cooper’s Plains. She remained there for three nights. At around 5 pm on 22 October 2019, the appellant and the complainant had an argument. The appellant accused the complainant of infidelity. They also argued over money. The complainant had given the appellant money for fuel to take her home, but he was refusing to do so. The complainant said that, as she was packing in the appellant’s bedroom, the appellant accused her of stealing from him. As they continued to argue, the appellant grabbed the complainant’s arms and “shoved” her to the floor. The complainant hit the bed leg on the way down with her head, arm and leg. The appellant flipped the complainant onto her back, put his hands around her throat and pressed with two hands so she could not breathe. The complainant did not know for how long and did not know why he stopped squeezing her throat. She did not consent to the appellant putting his hands around her throat at that time. The complainant said when the appellant moved away, she rolled onto her side and said she could not breathe. The appellant replied “Yes, you could”.[9] The appellant then obtained a beer from the fridge. She estimates the appellant drank at least a six pack that afternoon.[9]AB92/24.

Evidence

Evidence Before The Court

The material difference in each particular was that count one occurred in the main bedroom, whilst the complainant was packing her bags; count two occurred in the lounge area, following an argument about a tobacco pouch; count three occurred in or near the bathroom; and count four occurred in the appellant’s daughter’s bedroom.Evidence The complainant met the appellant in 2018. They developed their relationship through their church. Although they were in a domestic relationship, they lived at different residences. On 20 October 2019, the complainant travelled from her residence on the Gold Coast to the appellant’s residence at Cooper’s Plains. She remained there for three nights. At around 5 pm on 22 October 2019, the appellant and the complainant had an argument. The appellant accused the complainant of infidelity. They also argued over money. The complainant had given the appellant money for fuel to take her home, but he was refusing to do so. The complainant said that, as she was packing in the appellant’s bedroom, the appellant accused her of stealing from him. As they continued to argue, the appellant grabbed the complainant’s arms and “shoved” her to the floor. The complainant hit the bed leg on the way down with her head, arm and leg. The appellant flipped the complainant onto her back, put his hands around her throat and pressed with two hands so she could not breathe. The complainant did not know for how long and did not know why he stopped squeezing her throat. She did not consent to the appellant putting his hands around her throat at that time. The complainant said when the appellant moved away, she rolled onto her side and said she could not breathe. The appellant replied “Yes, you could”.[9] The appellant then obtained a beer from the fridge. She estimates the appellant drank at least a six pack that afternoon.[9]AB92/24. The complainant said she moved away from the bedroom to the lounge area. Whilst there, they continued to argue, with the appellant accusing her of being unfaithful. The complainant tried to calm things down. She offered the appellant a cigarette. The complainant picked up her tobacco pouch from the dining room table. As she went to roll a cigarette, the appellant said “No. I’ll roll it”.[10] The complainant refused to give him the pouch. They struggled and both ended up on the floor.[10]AB93/46. The complainant said she was on her hands and knees on the floor. The appellant was on his back. The appellant grabbed the complainant around the throat again, from behind. He squeezed his thumbs and fingers around her throat. The complainant could not breathe. He applied pressure for long enough that she thought she might die. She did not consent to the appellant putting his hands around her neck and squeezing on that occasion. The complainant said she did not know why the appellant stopped, but he went to the fridge to obtain another beer. Her neck was sore everywhere. She sat on the couch and rolled a cigarette and smoked it. The complainant made out that she needed to go to the toilet. She took her bag with her into the bathroom. The appellant followed her into the bathroom. He demanded the telephone in her bag. The complainant did not want to give it up.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits that an independent assessment of the evidence, as a whole, supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of each of the offences beyond reasonable doubt. The complainant’s evidence was not implausible and her written retraction was explained in evidence.Consideration Evidence of the history of the domestic relationship between a defendant and complainant is admissible evidence.[24] In such cases, the stringent test for admissibility in Pfennig v The Queen[25] does not apply. However, such evidence must be relevant and its relevance to the particular case must be explained to the jury.[26][24]Section 132B of the Evidence Act1977 (Qld).[25](1995) 182 CLR 461 at 483; confirmed in R v Bauer (2018) 92 ALJR 846 at 861-862 [52].[26]R v Roach (2009) 213 A Crim R 485 at 490; [2009] QCA 360 at [14]. Evidence of a domestic relationship may be relevant, although its purpose is to demonstrate that the defendant had a propensity to commit the act of violence against the complainant, which is the subject of the charge.[27] However, in that event, a jury must be directed as to the limits as to the use to which that evidence can be put so as to overcome the potential for misuse of that evidence by the jury.[27]Roach at 492-493 [19]-[23]. In the present case, the jury was specifically directed as to the basis upon which they had heard evidence of alleged prior domestic violence by the appellant:“So the real question here, did it happen? Did the particularised charges happen? Now, you have heard evidence about other conduct which has taken place between them in which the Prosecution says ‘We needed to call that to explain these incidents’, which are the subject of the alleged offences. In a sense what they are saying is this: ‘If you just heard about these offences without the background it would seem as though it was out of the blue, so we are entitled to show you this is not out of the blue’. But you must understand that the relevance of that evidence of the other times is limited. If you accept it, it does not make it more probable that he committed the alleged offences. It is relevant only to answer questions you may have as to the background to the incidents, what I just explained to you.The Prosecution say ‘We lead this to show you this is not out of the blue behaviour’. The Prosecution says that if you are satisfied that the other acts occurred they would also assist your understanding of the background of the incidents which are the subject of the alleged offences. It is for you to decide whether the evidence assists you in that way but you cannot use that evidence of the other times unless you are satisfied beyond reasonable doubt that those other acts occurred. Again, you cannot infer only from the fact that the other acts occurred that he did the things with which he has been charged. So that is how you use the evidence of the other acts.”[28][28]AB 37/32 – 38/6.