R v Jal - [2025] QCA 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAL [2025] QCA 17

PARTIES:

R
v
JAL
(appellant)

FILE NO/S:

CA No 263 of 2023
DC No 1459 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 15 December 2023 (Byrne KC DCJ)

DELIVERED ON:

28 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2024

JUDGES:

Dalton and Brown JJA and Kelly J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty on one count of choking and found not guilty on one count of wilful damage and one count of assault occasioning bodily harm, while armed and was found not guilty of one charge of common assault, by directed verdict, and a nolle prosequi was entered regarding a further charge of common assault – whether the verdict of guilty was inconsistent with the not guilty verdicts – where there were inconsistencies in the complainant’s evidence – whether the verdict was unreasonable or insupportable having regard to the whole of the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v CX [2006] QCA 409, cited
R v DAL [2005] QCA 281, cited
R v Fanning [2017] QCA 244, cited

COUNSEL:

J R Hunter KC for the appellant
M A Green for the respondent

SOLICITORS:

Gilshenan & Luton Legal Practice for the appellant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: I agree with the order proposed by Brown JA, and with her reasons. I wish to add some short remarks of my own.
Inconsistency
The verdict on count 1 was not inconsistent with the other verdicts brought in by the jury in the sense spoken of in MacKenzie v The Queen.[1] The offending alleged at count 1 occurred on a different date and was different offending, although it might all be seen as offending associated with a marriage breakdown.
[1](1996) 190 CLR 348.
The offending charged at count 1, like the offending charged at counts 2 to 5, very much depended on the complainant’s evidence. There were difficulties with the complainant’s evidence in relation to all counts but, for the most part, the difficulties with her evidence as to count 1 were different from the difficulties with her evidence as to counts 2 to 5. This is significant, as all that can be drawn from the not guilty verdicts is that the jury had a reasonable doubt about those counts. The not guilty verdicts cannot be interpreted as meaning that the jury rejected the complainant’s evidence as being entirely false or unreliable.…

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 Jal

Details

AGLC: R v Jal [2025] QCA 17
Case: [2025] QCA 17
Decision Date: 28 February 2025

CaseChat Overview and Summary

The appellant appealed against a conviction for choking, arguing that the verdict was unreasonable or insupportable having regard to the evidence. The appellant was acquitted on one count of wilful damage and one count of assault occasioning bodily harm, while armed, and a nolle prosequi was entered regarding a further charge of common assault. The appellant contended that the verdict of guilty was inconsistent with the not guilty verdicts and that the verdict was unreasonable or insupportable having regard to the whole of the evidence. The court noted that the complainant gave evidence via video link and provided a detailed account of the events leading up to the incident, including the appellant's behaviour towards her and the physical injuries she sustained. The court carried out its own independent assessment of the evidence and found that there were inconsistencies in the complainant's evidence, but ultimately found that the verdict was not unreasonable or insupportable having regard to the whole of the evidence. The appeal was dismissed.

The legal issue before the court was whether the verdict of guilty was inconsistent with the not guilty verdicts and whether the verdict was unreasonable or insupportable having regard to the whole of the evidence. The court noted that the appellant was acquitted on one count of wilful damage and one count of assault occasioning bodily harm, while armed, and a nolle prosequi was entered regarding a further charge of common assault. The court found that the verdict of guilty was not inconsistent with the not guilty verdicts and that the verdict was not unreasonable or insupportable having regard to the whole of the evidence. The court noted that the complainant gave evidence via video link and provided a detailed account of the events leading up to the incident, including the appellant's behaviour towards her and the physical injuries she sustained. The court found that there were inconsistencies in the complainant's evidence, but ultimately found that the verdict was not unreasonable or insupportable having regard to the whole of the evidence.

The court's reasoning was that there were inconsistencies in the complainant's evidence, but ultimately found that the verdict was not unreasonable or insupportable having regard to the whole of the evidence. The court carried out its own independent assessment of the evidence and found that the complainant gave a detailed account of the events leading up to the incident, including the appellant's behaviour towards her and the physical injuries she sustained. The court found that the inconsistencies in the complainant's evidence did not undermine the overall reliability of her testimony. The court found that the evidence was sufficient to support the verdict of guilty on count 1. The court noted that the appellant was acquitted on one count of wilful damage and one count of assault occasioning bodily harm, while armed, and a nolle prosequi was entered regarding a further charge of common assault. The court found that the verdict of guilty was not inconsistent with the not guilty verdicts.

The final order of the court was that the appeal be dismissed. The court found that the verdict of guilty was not unreasonable or insupportable having regard to the whole of the evidence and that the inconsistencies in the complainant's evidence did not undermine the overall reliability of her testimony. The court found that the evidence was sufficient to support the verdict of guilty on count 1 and that the verdict of guilty was not inconsistent with the not guilty verdicts. The appeal was dismissed and the conviction for choking was upheld.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant’s outline of submissions summarises the evidence at trial, the particulars of offending and the verdicts. The Crown agreed with the summary provided by the appellant and accepted that it can be relied upon as the framework for considering the ground of appeal. The Court however must carry out its own independent assessment of the evidence.The Complainant’s Evidence The complainant gave evidence via video link. She and the appellant had known each other for about 20 years and were married in 2005. They divorced in 2019. According to the complainant, she told the appellant that the relationship was over on 14 December 2017 when they were together in New Zealand for a wedding. They returned to the family home in Everton Hills on or about 29 December 2017, where they slept in separate bedrooms. The complainant recalled an incident that occurred on 31 December 2017 when she was sleeping. She described feeling the bed move as though someone else was on it. As she began to wake up, she felt a hand on her throat and a little pulling of her hair. She then felt her throat being squeezed and pressure being applied for perhaps three to four seconds, during which time she struggled to breathe. She woke up to find it was the appellant. He immediately let go, she sat up and she asked the appellant why he had done that. She did not give evidence of any answer. She stated she did not give him permission to do what he did. This incident was the subject of count 1. Later that day, she went to Chermside, and met up with a friend, JW, at a café because she wanted to leave the house. She had texted her friend at 7.20 am that morning and asked if she was available. JW gave evidence. According to the complainant, she had some bruises on the left-hand side of her neck as a result of the incident. She later arranged for a friend, CB, to take some photographs on or about 4 January 2018. The date of the photographs was confirmed by metadata. She identified the bruises on photographs as being consistent with what she saw on her neck. The photographs identified as being the complainant’s neck were exhibits 1 and 2. CB gave evidence. By 23 September 2018, the appellant had moved out of the family home. The complainant had commenced a relationship with a new man, DB, in about August 2018. On 23 September 2018 at around 8.00 am, the complainant heard the garage door open. DB’s motorbike was in the garage. She was not expecting anyone. She knew because the garage door was activated and opened that the appellant was coming into the house. She heard the appellant banging on the front door and saying such things as, “Whose effing bike is this?”, and “You slut”, “You whore”, “Get out here”, and “Look what your mother is doing”.[8] Although the appellant had the children with him, there were no arrangements for him to be present that day. DB gave evidence.[8]AB 2 121-122. The complainant gave evidence that the appellant returned the following day, 24 September 2018, at about 6.30 pm. She said that he had her cat in his arms and called out for the children to open the door. He then came inside, put the cat down and announced that he was going to collect some stuff. The complainant said that he started roughly removing pictures from the wall, damaging the wall in the process, which was the subject of count 2. She stated that there was gouging in parts of the wall and paint off the corner of pictures. She stated he got one or two pictures off the wall before he stopped doing it. She gave evidence that he damaged the wall which she subsequently had to get repaired.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v JAL [2025] QCA 17
PARTIES:	R v JAL (appellant)
FILE NO/S:	CA No 263 of 2023 DC No 1459 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 15 December 2023 (Byrne KC DCJ)
DELIVERED ON:	28 February 2025
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2024
JUDGES:	Dalton and Brown JJA and Kelly J
ORDER:	The appeal be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was found guilty on one count of choking and found not guilty on one count of wilful damage and one count of assault occasioning bodily harm, while armed and was found not guilty of one charge of common assault, by directed verdict, and a nolle prosequi was entered regarding a further charge of common assault – whether the verdict of guilty was inconsistent with the not guilty verdicts – where there were inconsistencies in the complainant’s evidence – whether the verdict was unreasonable or insupportable having regard to the whole of the evidence M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited R v CX [2006] QCA 409, cited R v DAL [2005] QCA 281, cited R v Fanning [2017] QCA 244, cited
COUNSEL:	J R Hunter KC for the appellant M A Green for the respondent
SOLICITORS:	Gilshenan & Luton Legal Practice for the appellant Director of Public Prosecutions (Queensland) for the respondent