R v FBD

Case [2023] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBD [2023] QCA 236

PARTIES:

R
v
FBD
(appellant)

FILE NO/S:

CA No 116 of 2023
DC No 75 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba – Date of Conviction: 21 June 2023 (Kent KC DCJ)

DELIVERED ON:

28 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2023

JUDGES:

Bowskill CJ and Morrison JA and Crow J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of indecent treatment of a child under 16 (count 3) and one court of attempted rape (count 4) – where the appellant was acquitted of two counts of indecent treatment of a child under 16 (counts 1 and 2) – where there were inconsistencies between the complainant’s evidence and the other evidence in relation to counts 1 and 2 – where there was other evidence that supported the complainant’s evidence in relation to counts 3 and 4 – whether the jury’s verdicts were unreasonable and cannot be supported having regard to the evidence – whether the verdicts on counts 3 and 4 are unreasonable because they are inconsistent with the verdicts of acquittal on counts 1 and 2

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant’s trial counsel applied for a direction in accordance with s 132BA of the Evidence Act 1977 (Qld) – where the appellant submitted the delay was significant to the loss of records – where the records lost could not have assisted with counts 3 and 4 – whether the trial judge erred in failing to give a direction in accordance with Longman v The Queen (1989) 168 CLR 79

Evidence Act 1977 (Qld), s 132BA

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
R v CCX[2022] QCA 260, considered

COUNSEL:

A M Hoare for the appellant (pro bono)
C M Cook for the respondent

SOLICITORS:

Wonderley & Hall Solicitors for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. BOWSKILL CJ:  I agree, for the reasons given by Morrison JA, that the appeal should be dismissed.

  2. MORRISON JA:  After a three-day trial the appellant was convicted of two counts of unlawfully and indecently dealing with a child under the age of 16 years.  The offences took place between 4 April 1986 and 1 May 1986, on a rural property.  At the time the complainant was about 13-14 years old.

  3. The complainant’s mother (MUM) married the appellant’s uncle (UNK).  There were two properties, X and Y.  The complainant lived at X with MUM and UNK.  The appellant lived at his property, Y.

  4. The…

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Details
AGLC
R v FBD [2023] QCA 236
Case
[2023] QCA 236
Decision Date

CaseChat Overview and Summary

The appellant appealed against his conviction on one count of indecent treatment of a child under 16 (count 3) and one count of attempted rape (count 4), arguing that the verdicts were unreasonable and not supported by the evidence. The appellant was acquitted of two counts of indecent treatment of a child under 16 (counts 1 and 2). The appeal was dismissed by the Court of Appeal. The court held that the complainant's credibility was not necessarily damaged by the jury's rejection of her evidence in respect of counts 1 and 2, and that the jury had the benefit of the preliminary complaint evidence, which was consistent with her evidence in respect of counts 3 and 4. The court found that the jury's verdicts on counts 3 and 4 were not unreasonable and could be supported by the evidence. The court also held that there was no miscarriage of justice in the trial, and that the trial judge did not err in failing to give a direction in accordance with Longman v The Queen.

The court dismissed the appeal and ordered that the appeal be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In addition, there were a number of exhibits, including photographs of X, various trucks, sheds and a race car, and drawings of the layout of the loading area at X, and a diagram of Y.The complainant’s evidence The complainant was 50 at the time of the trial. She identified her family, including MUM and BRO, and that MUM married UNK. At the start of 1985 she and her family lived in Brisbane but moved to UNK’s farm, X, at the end of 1985. She was then at the end of Year 7 in school. MUM married UNK in April 1986.[13][13]AB 138-139. She said the appellant’s farm, Y, was about a 10-15 minute drive from X. The appellant was married to FIN, and they had two children, SON and DAU.[14][14]AB 140. The complainant said:(a)she met the appellant soon after moving to X, and saw him regularly when he came to X to either cut grain or harvest grain, or talk to UNK;[15][15]AB 140 line 27.(b)she thought that he repaired his race car in the shed at X at one time;[16][16]AB 140 line 30.(c)she described her interaction with the appellant as “friendly”, and “then over time it just developed into a hug here and there and then it was, you know, a kiss”;[17][17]AB 140 lines 37-41.(d)she said that the appellant use to cart grain to Brisbane for UNK and sometimes she went with him in the truck;[18][18]AB 140 line 44.(e)she said the hugs and kisses occurred not just at X, but at the appellant’s farm at Y, and in the truck;[19][19]AB 141 lines 7-14.(f)she said that the physical interaction went further than a hug and a kiss, describing an occasion when the appellant came to X to pick up grain; while he was filling up the truck he gave her a hug from behind and “slid his hands over my breasts and then down towards my vagina”; the hand moved “to the top of my vagina … just the top of the … pelvic bone”;[20][20]AB 141 line 42 to AB 142 line 16. This was count 1.(g)she said that the appellant’s hand went between her thighs and in her shorts, but outside her underwear;[21][21]AB 142 line 43 – AB 143 line 28.(h)she described the appellant’s hand as over her underwear and “cupping it”; the whole of his hand was between her thighs but part of one finger was on the top part of her vagina;[22][22]AB 144 lines 7-22.(i)she said that the touching stopped when the appellant realised his truck needed to be moved;(j)she put the date this occurred at “roughly around December” but before her mother married the UNK;[23][23]AB 145 lines 5-11.(k)she drew a diagram of the house and the shed, and where the truck was; that became exhibit 1; by reference to that she described where count 1 took place;[24](l)turning to count 2, she said there was a second time when the appellant touched her “In the shed, over at his place”;[25](m)she described that on an occasion when UNK and she went over to look at a race car and to talk to the appellant and his uncle; while the others were talking away from the shed, the appellant hugged her from behind, the same as the first time, with his hand on her breast and with his other hand he gave her a pat on her pelvic bone, over her clothing;[26](n)she identified various positions on a diagram (exhibit 3) and by reference to photos of Y (exhibit 4);(o)turning to count 3 and 4, she said that when her mother and UNK got married in April 1986, during the period of their honeymoon she stayed with the appellant and his wife, FIN, for approximately two weeks;[27](p)during that time she said that she was in the appellant’s room, in his bed, and “we were just in bed talking”; she had pyjamas on but the appellant was naked; at the time the appellant’s daughter, DAU, was in the house but in her bed in a separate room; the appellant took the complainant’s hand and “slid it down his chest [and] over his penis”; it was just “a graze over it”, and she took her hand back;[28](q)after that she said the appellant “rolled me over onto my back and my pyjama pants were down and he put his penis on my vagina … [h]e tried to push it a little to put it inside my vagina but it just didn’t happen … [j]ust pushed on my vagina. It wouldn’t fit”;[29](r)she described her reaction when that occurred as being “like a stiff dolly” and she was scared;[30](s)by reference to a diagram of the house (exhibit 5) she identified various rooms and where that incident occurred; and(t)after that occasion she said that nothing else happened except that they continued “kissing and cuddling”, but over time it became less and less.[31][24]AB 146-147.[25]AB 148 line 29.[26]AB 149 lines 6-18.[27]AB 152-153.[28]AB 153 lines 15-46.[29]AB 154 lines 13-20.[30]AB 154 line 34.[31]AB 155 line 44 to AB 156 line 9.

Decision

Reasons for decision

This ground fails.Conclusion As discussed in the reasons above, all grounds of appeal have failed. I would therefore order:1.Appeal dismissed. CROW J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

In cross-examination the following points emerged:(a)the appellant accepted that on occasions he would visit UNK at X; however, he denied encountering the complainant on any such occasion;[103][103]AB 318 lines 12-20.(b)the appellant accepted that on occasions in 1985 he would help out UNK at X, although not very often;[104][104]AB 319 lines 9-22.(c)he denied helping out in grain loading or moving because he was too busy with his own arrangements;[105][105]AB 320.(d)he denied that he went to fill up his truck with grain at X at any time in 1985;[106][106]AB 321.(e)he denied being friendly with the complainant, being interested in her, putting his arm around her shoulder, or giving her a hug;[107][107]AB 321-323.(f)he denied that he developed feelings for the complainant in 1985 or 1986;[108][108]AB 323 line 48.(g)questioned about what he said in the pre-text call, the appellant said that what they had was a friendship, not a relationship, and when it was put to him that they were friends, he said “Well, … we weren’t enemies”;[109][109]AB 324.(h)taken to the pre-text call, and the fact that he did not deny what the complainant said to him about their interaction, the appellant explained the way he responded in this exchange:[110]“You didn’t say, did you, ‘You were never in my bed’?---My thoughts on the matter is that I thought you’re – what you’re talking, you’re nuts.Sorry, can you just ---?---I said ------raise your voice a bit and say that one again?--- When she said that to me, I’m thinking to myself that you are nuts.But you didn’t say that to her, did you?---No, I didn’t.”(i)when taken to that part of the pre-text call concerning her reference to them being in bed and things become “touchy-feely”, he agreed that he had said what the recording showed, but said “I’ve never tried to have sex with her” and “I’ve never tried to have sex with that girl”;[111](j)the appellant denied the details of counts 3 and 4,[112] and the details of counts 1 and 2;[113] and(k)when taken to the pre-text call again, the appellant maintained that his references to “an attraction for both of us”, and not proceeding to take it any further, was a reference to what happened in 1993, and not events when the complainant was about 13.[114][110]AB 328 lines 25-33.[111]AB 330-331.[112]AB 347-348.[113]AB 350.[114]AB 353-355.Consideration – unreasonable verdicts In giving consideration to this ground of appeal it must be remembered that it relates only to counts 3 and 4, the appellant having been acquitted on counts 1 and 2. The essence of the submission made by the appellant is that the complainant’s credibility must have been so damaged by the jury’s rejection of it in respect of counts 1 and 2, that it was not open to the jury to accept her evidence in respect of counts 3 and 4. In my view, for a number of reasons that submission must be rejected. First, the jury had the benefit of the preliminary complaint evidence. It is true to say that insofar as the complainant said anything to her mother and brother, it was only in the most vague terms. The preliminary complaint to the police officer, however, was detailed and consistent with her evidence. The jury were well aware of the fact that it was made in 2021, when the events happened in 1986. The entire trial was conducted in the undoubted atmosphere that it alleged historical acts. In that sense the jury may not have found it all that surprising that little detail was given to a mature woman’s mother and brother. However, the same cannot be said of the conversation with the police officer. What the complainant said then bore a striking similarity to her evidence in respect of counts 3 and 4.