R v FBJ - [2024] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

R v FBJ [2024] QCA 242

PARTIES:

R
v
FBJ
(appellant)

FILE NO/S:

CA No 31 of 2024
DC No 776 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 19 October 2023 (Fantin DCJ)

DELIVERED ON:

29 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2024

JUDGES:

Bowskill CJ and Brown JA and Doyle AJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of one count of indecent treatment of a child under 16, who was under 12, following a jury trial – where the appellant was charged on the basis that he had wilfully exposed himself to a child under the age of 12 – where the trial judge gave a modified direction from the Bench Book in respect of the third element, which relates to whether the wilful exposure was unlawful – where the modified direction in respect of the third element invited the jury to consider the defendant’s submission that it may inferred that there was some non-intentional exposure – whether the modified portion of the direction was erroneous because it should have been incorporated in the second element namely, whether the appellant wilfully exposed himself – whether the modified direction should have occurred under the second element and not the third element – whether the modified direction elevated the test that the appellant had to satisfy because it was essentially couched in terms of the defence

R v Douglas[2019] QCA 215, cited
R v SDQ[2022] QCA 91, cited

COUNSEL:

M J Jackson for the appellant
S L Dennis for the respondent

SOLICITORS:

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

BOWSKILL CJ: I agree with Brown JA.
BROWN JA: The appellant was convicted of one count of indecent treatment of a child under 16, under 12, following a trial. He was sentenced to 2 years and 9 months’ imprisonment. No parole date for release was set.
The appellant appeals on the sole ground that a miscarriage of justice occurred because the learned trial judge failed to properly direct the jury about the element of “wilful exposure”.
Circumstances of alleged offending
The particulars of the offending provided by the Crown, the respondent to this appeal, were that:[1]
“On a date unknown between 14 November 2021 and 20 November 2021 at [a remote community in Northern Queensland] the defendant exposed himself to [the complainant], a child under 16 to an indecent act, namely he deliberately showed [the complainant] his penis at [an address in the remote community in Northern Queensland].
And [the complainant] was under 12 years.”
[1]AB 345.
Evidence was given by the complainant, two of her friends and two other people who were eyewitnesses. An excerpt of the summary of the complainant’s evidence from the trial judge’s…

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 FBJ

Details

AGLC: R v FBJ [2024] QCA 242
Case: [2024] QCA 242
Decision Date: 29 November 2024

CaseChat Overview and Summary

The case of R v FBJ involves the appellant who was convicted by a jury of one count of indecent treatment of a child under 16, who was under the age of 12. The conviction stemmed from the appellant allegedly wilfully exposing himself to the child. The appellant sought to appeal against the conviction, primarily contending that the trial judge had erred in the direction given to the jury regarding the third element of the offence.

The central legal issue before the court was whether the trial judge's modified direction to the jury concerning the third element of the offence was erroneous. Specifically, the appellant argued that the modified direction should have been incorporated into the second element of the offence, which concerns whether the appellant wilfully exposed himself. The appellant contended that the modified direction in the third element essentially placed the burden of proof on the appellant to disprove non-intentional exposure, thus elevating the standard of proof required.

The court examined the summing up provided to the jury, particularly the directions concerning the second and third elements of the offence. The court determined that the trial judge's modified direction was not erroneous. The court held that the modified direction was appropriately placed in the third element, as it pertained to whether the wilful exposure was unlawful, and it did not elevate the standard of proof required of the appellant. The court further held that the direction allowed the jury to consider the possibility of non-intentional exposure, which was a matter for the jury to determine based on the evidence presented.

The appeal was dismissed, affirming the conviction. The court found no merit in the appellant's argument that the modified direction was incorrectly placed or that it increased the burden of proof. The conviction was upheld as the jury had been properly directed on the elements of the offence.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is appropriate to extract the summing up with respect to the second and third elements that was provided to the jury:“If you are satisfied of that beyond reasonable doubt, then you go on to consider the second element, that is, that the defendant wilfully exposed the complainant to that indecent act.‘Wilfully’ means that the defendant deliberately or intentionally exposed the complainant to the indecent act or that the defendant deliberately did the indecent act aware at the time that the results charged – ie, exposing the complainant to that act – was a likely consequence of the doing of the indecent act, and yet he recklessly proceeded regardless of that risk.‘Exposed’ is an ordinary English word and it means ‘showed’.As I said earlier, intended – you have to consider whether the defendant intentionally or deliberately exposed the child to his penis. In this legal context, those words carry their ordinary meaning. In ascertaining the defendant’s intention, you are drawing an inference from facts which you find established by the evidence concerning his state of mind.Intention may be inferred or deduced from the circumstances in which the event is said to have occurred and from the conduct of the defendant before, at the time or, or after he did the specific act which forms the basis for the charge.Because the second element requires the Crown to prove that the defendant wilfully exposed the complainant to the indecent act, the Crown must prove beyond reasonable doubt that the defendant deliberately exposed the child to his penis in the circumstances in which she says it occurred, that is, he meant to produce that result by his conduct.As I said earlier, in this case, there is no evidence of the defendant’s state of mind, so you have to consider that issue by looking at the evidence about the circumstances in which it occurred, and you can take into account the evidence from a number of witnesses about what the defendant, [the appellant], did or said before, during or after that event.When you are considering whether he exposed the child to his penis wilfully, deliberately or intentionally, and you consider the other pieces of the evidence upon which you could draw such an inference, if any, you must bear in mind that those pieces of evidence don’t prove a fact directly, but might point to its existence. Remember earlier when I talked about drawing inferences and direct evidence? This is an example of where you would need to consider different pieces of circumstantial evidence that can be relied upon not as proving his intention directly, but instead as pointing to its existence. When you consider whether he did this wilfully, deliberately or intentionally, it is necessary that his guilt should not only be a rational inference, but also the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty.Moving on to the third element of the offence, it is that the defendant wilfully exposed the complainant – that wilfully exposing the complainant to that indecent act was unlawful. Wilfully exposing a child under 16 years of age to an indecent act will be unlawful unless it is authorised, justified or excused by law or is the subject of some legal defence. In this case, there is no authorisation, justification, excuse or defence raised on the evidence. Although Defence counsel has submitted that it may be open for you to infer that there was some non-intentional exposure, it is a matter for you, members of the jury, to consider that on the evidence. But it is not a case where there is evidence saying, ‘Yes, he did the act, but there was some lawful excuse for it.’” (emphasis added).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v FBJ [2024] QCA 242
PARTIES:	R v FBJ (appellant)
FILE NO/S:	CA No 31 of 2024 DC No 776 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns – Date of Conviction: 19 October 2023 (Fantin DCJ)
DELIVERED ON:	29 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2024
JUDGES:	Bowskill CJ and Brown JA and Doyle AJA
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of one count of indecent treatment of a child under 16, who was under 12, following a jury trial – where the appellant was charged on the basis that he had wilfully exposed himself to a child under the age of 12 – where the trial judge gave a modified direction from the Bench Book in respect of the third element, which relates to whether the wilful exposure was unlawful – where the modified direction in respect of the third element invited the jury to consider the defendant’s submission that it may inferred that there was some non-intentional exposure – whether the modified portion of the direction was erroneous because it should have been incorporated in the second element namely, whether the appellant wilfully exposed himself – whether the modified direction should have occurred under the second element and not the third element – whether the modified direction elevated the test that the appellant had to satisfy because it was essentially couched in terms of the defence R v Douglas[2019] QCA 215, cited R v SDQ[2022] QCA 91, cited
COUNSEL:	M J Jackson for the appellant S L Dennis for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent