SUPREME COURT OF QUEENSLAND
CITATION:
R v LBD [2023] QCA 266
PARTIES:
R
v
LBD
(appellant)FILE NO/S:
CA No 177 of 2023
DC No 91 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Maroochydore – Date of Conviction: 11 September 2023 (Cash KC DCJ)
DELIVERED ON:
22 December 2023
DELIVERED AT:
Brisbane
HEARING DATE:
21 November 2023
JUDGES:
Mullins P, Bond JA and Crow J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of choking in a domestic setting and one count of common assault that were domestic violence offences – where the two offences were committed on the same occasion during an argument between the appellant and the complainant – where the prosecution relied on five uncharged acts as evidence of the relationship between the complainant and the appellant to give context to the events that constituted the charges and also as evidence of propensity to commit acts of violence against the complainant in heated arguments – where the trial judge directed the jury on dealing with relationship evidence as context and also as evidence of propensity – where the direction did not expressly state, but conveyed, that if the jury accepted that any of the uncharged acts demonstrated the appellant’s propensity to commit any of the offences they could use that propensity to assess whether the complainant’s evidence about the relevant offence was credible and reliable – whether the direction to the jury was wrong or inadequate
Evidence Act 1977 (Qld), s 103CB, s 103Z, s 103ZC
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
R v Roach (2009) 213 A Crim R 485; [2009] QCA 360, considered
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, consideredCOUNSEL:
T A Ryan KC, with H Edwards, for the appellant
M A Green for the respondentSOLICITORS:
BJH Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: On 11 September 2023, the appellant was convicted after trial in the District Court before a jury of one count of choking in a domestic setting (count 2) and one count of common assault (count 3). Both counts 2 and 3 were domestic violence offences. The appellant was acquitted of one count of assault occasioning bodily harm (count 1) and one count of choking in a domestic setting (count 5). It was the same complainant for counts 1‑3 and 5.
The appellant appeals against his conviction on two grounds:
1.A miscarriage of justice occurred because the learned trial judge wrongly directed the jury that uncharged acts of domestic violence could be used as propensity evidence in proof of the appellant’s guilt of the charged offences where the Crown disavowed reliance on it for that purpose at the commencement of the trial.
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- AGLC
- R v LBD [2023] QCA 266
- Case
- [2023] QCA 266
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge's direction to the jury was incorrect or insufficient regarding the use of uncharged acts of domestic violence as propensity evidence. The court needed to determine if the direction conveyed an incorrect understanding of the law and whether this affected the jury's assessment of the evidence.
The court found that the trial judge's direction to the jury, while not explicitly stating that the uncharged acts could be used to assess the credibility of the complainant's evidence, did imply that such evidence could be used in this way. However, the court concluded that this direction did not result in a miscarriage of justice. The jury was adequately informed that propensity evidence could only be used if it was satisfied beyond reasonable doubt that the appellant was responsible for the uncharged acts. The court held that the direction did not mislead the jury in a way that would have affected the outcome of the trial.
The appeal was dismissed, and the conviction remained in place. The court found that the trial judge's direction, while not ideal, did not amount to a miscarriage of justice and did not improperly influence the jury's decision-making process.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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