R v Fbe - [2023] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBE [2023] QCA 248

PARTIES:

R
v
FBE
(appellant)

FILE NO/S:

CA No 256 of 2022
DC No 47 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay – Date of Conviction: 16 November 2022 (Rafter SC DCJ)

DELIVERED ON:

8 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2023

JUDGES:

Mullins P and Bond JA and Kelly J

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – where the appellant was charged with four counts of indecent treatment of a child under 16 – where the appellant was convicted on count 1 but acquitted on counts 2-4 – whether the conviction on count 1 was unreasonable as the conviction on that count was inconsistent with the acquittals of on each of counts 2 to 4

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – VERDICT AGAINST EVIDENCE – where the Crown case rested entirely on the evidence of the complainant – where his evidence supported count 1 – where his credibility in relation to his evidence on count 1 was supported by the preliminary complaint evidence of his school friend and sister – where his credibility was also supported by corroborating evidence given by his sister and the appellant’s girlfriend – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of count 1 – where the complainant conceded he had doubts as to whether the accused’s conduct was deliberate – whether concession was an insurmountable obstacle to the jury accepting the complainant’s evidence

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v ABI[2023] QCA 166, cited
R v Mirotsos[2022] QCA 76, applied

COUNSEL:

M J Jackson for the appellant
D Kovac for the respondent

SOLICITORS:

McKays Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Bond JA.
BOND JA: On 16 November 2022 the appellant was convicted of indecent treatment of a child under 16 years (count 1). He was sentenced to four months’ imprisonment immediately suspended for an operational period of 12 months. He was acquitted of three counts of indecent treatment (counts 2, 3 and 4).
In a particulars document which was provided to the jury the counts were detailed in the following manner:
“At a sleepover at the defendant’s house after mowing the defendant’s lawn
Count 1 that between the twenty-eighth day of February, 2021 and the first day of April, 2021 at … in the State of Queensland, [the appellant] unlawfully and indecently dealt with [the…

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 Fbe

Details

AGLC: R v Fbe [2023] QCA 248
Case: [2023] QCA 248
Decision Date: 8 December 2023

CaseChat Overview and Summary

In the case of R v Fbe, the appellant was convicted of one count of indecent treatment of a child under 16 but acquitted on three other similar counts. The appellant sought a new trial on the basis that the jury's verdict was unreasonable, as it was inconsistent with the acquittals on counts 2 to 4. The appeal hinged on whether the jury could have reasonably found the appellant guilty on count 1 while acquitting him on the other counts, given the complainant's testimony.

The court examined the credibility of the complainant's evidence, which was central to the Crown's case. The complainant's testimony supported count 1 but not counts 2 to 4, which led to the question of whether it was open to the jury to convict the appellant of count 1 while acquitting him of the others. The complainant conceded he had doubts about whether the appellant's conduct was deliberate, raising the issue of whether this concession was an insurmountable obstacle for the jury.

The court concluded that the jury was entitled to accept the complainant's evidence regarding count 1, supported by corroborating evidence from the complainant's sister and the appellant's girlfriend. The court found that the complainant's concession did not necessarily undermine his credibility on count 1. Therefore, the appeal ground regarding inconsistency between findings was dismissed. The court ultimately found that the appeal must be dismissed, and the conviction on count 1 stood.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the time of the alleged offending the appellant was aged 27. He lived with his girlfriend GFR, who was a good friend of the complainant’s mother, CMM, and also of CMM’s wife, CSM. The complainant would have been aged between 13 to 14 at the time of count 1 and 14 at the time of each of counts 2, 3 and 4. He was 15 at the time he gave his pre-recorded evidence which was heard by the jury at the trial.The complainant’s evidence In his pre-recorded testimony, the complainant’s evidence in chief comprised his stating that the information he told police on 26 April 2021 was true. The body of his evidence was contained in the recording of his interview with police. In that interview the complainant gave evidence supportive of each of the counts but also of sexualized conduct of the appellant towards him on other occasions apart from the four specific counts, which the Crown relied on as proof that the defendant had a sexual interest in the complainant and was prepared to act on it. As to count 1, the complainant described what had happened at the appellant’s house on the last time he had a sleepover. This was about 3 weeks to a month before Easter in 2021. He and the appellant were playing video games, specifically Call of Duty. The complainant recalled that the appellant was drinking and during the game, the appellant would hold his fist up by way of congratulation to the complainant if he had made a good kill or good move. However, the complainant recalls that when the rest of the house went to bed, the fist bump for a good move turned into the appellant placing his hand on the complainant’s upper leg and moving his hand to the point where his hand or some part of it touched the complainant’s penis over the top of his clothing. The complainant’s evidence as to counts 2 to 4 was that the events the subject of those counts took place about a month after the events of count 1, during the Easter school holidays of 2021 when the appellant took the complainant on a trip to the appellant’s father’s property near Bundaberg. The complainant’s recollection was that they left on the Wednesday and came back on Tuesday. As to count 2, the complainant’s evidence was that he and the appellant were in the car and the appellant was driving at night. They were looking for something to shoot, using a torch to look for the red eyes of animals. They came up to a pond; saw a little bird; and the complainant caught the bird and brought it over to the appellant. The complainant put the bird back. The appellant congratulated the complainant for his catch by placing his hand on the complainant’s leg, and then the area of his penis, on the outside of his clothing. Specifically, the complainant stated that the appellant touched his penis with his hand and then moved his “thumb and index finger over a bit”. There was, however, a degree of confusion in the details explained by the complainant. As to this:(a)The complainant said – referable to the events after catching the bird – that:“And um, he's like, congratulating me, putting his hand on my leg and over, and then um, I put it back, and then as we're driving um, w-, he doesn't do it while he's dr-, driving, but when I start driving on the way home um, he does it because it's like, his way of congratulating me, I guess.… and he'd always do that um, and like, touch me when I was driving mainly.”(b)That passage seemed to suggest that the touching must have occurred when the complainant was driving on the way home after catching the bird and putting it back, which suggests that the appellant was touching him on his left leg.(c)However, immediately after making that observation, he was asked again where he was when the appellant touched him after he put the bird back and he answered that he was in the passenger seat and the appellant touched him on his right leg.

Decision

Reasons for decision

Appeal ground 1 fails.Conclusion The appeal must be dismissed. KELLY J: I agree with Bond JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v FBE [2023] QCA 248
PARTIES:	R v FBE (appellant)
FILE NO/S:	CA No 256 of 2022 DC No 47 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mackay – Date of Conviction: 16 November 2022 (Rafter SC DCJ)
DELIVERED ON:	8 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	31 May 2023
JUDGES:	Mullins P and Bond JA and Kelly J
ORDER:	Appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – where the appellant was charged with four counts of indecent treatment of a child under 16 – where the appellant was convicted on count 1 but acquitted on counts 2-4 – whether the conviction on count 1 was unreasonable as the conviction on that count was inconsistent with the acquittals of on each of counts 2 to 4 APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE – VERDICT AGAINST EVIDENCE – where the Crown case rested entirely on the evidence of the complainant – where his evidence supported count 1 – where his credibility in relation to his evidence on count 1 was supported by the preliminary complaint evidence of his school friend and sister – where his credibility was also supported by corroborating evidence given by his sister and the appellant’s girlfriend – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of count 1 – where the complainant conceded he had doubts as to whether the accused’s conduct was deliberate – whether concession was an insurmountable obstacle to the jury accepting the complainant’s evidence Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v ABI[2023] QCA 166, cited R v Mirotsos[2022] QCA 76, applied
COUNSEL:	M J Jackson for the appellant D Kovac for the respondent
SOLICITORS:	McKays Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent