R v LBD - [2023] QCA 266

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 2022

DIVISION:

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, considered

COUNSEL:

T A Ryan KC, with H Edwards, for the appellant
M A Green for the respondent

SOLICITORS:

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.

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 LBD

Details

AGLC: R v LBD [2023] QCA 266
Case: [2023] QCA 266
Decision Date: 22 December 2023

CaseChat Overview and Summary

In the case of R v LBD, the appellant appeals against his conviction on two counts of choking and common assault in a domestic setting. The trial was held in the Supreme Court of Queensland, where the appellant was found guilty of the charges. The appellant contends that the trial judge's direction to the jury regarding the use of uncharged acts of domestic violence as propensity evidence was erroneous and inadequate, potentially resulting in a miscarriage of justice.

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

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.2.Even if the evidence of uncharged acts could properly have been used as propensity evidence in proof of the appellant’s guilt of the charged offences, a miscarriage of justice occurred because the jury were wrongly, and inadequately, directed about the way in which it might be used.Background and evidence relating to the charges The complainant had been in a relationship with the appellant between February 2015 and March 2021 and there were two children of the relationship born respectively in December 2015 and February 2017. The family relocated in October 2018 from regional Victoria to a regional town in Queensland where the appellant had purchased a home. Count 1 was based on an allegation that during an argument in or about December 2019 at the residence of the appellant and the complainant in Queensland, the appellant bit the complainant’s arm. The complainant’s evidence about this incident was that she did not remember what they had been arguing about. The complainant said she was sitting on the couch, the appellant grabbed her on the shoulder, pushed her back into the couch, leant down, and bit her on her right upper arm so hard that her arm bled. A couple of days after the incident the complainant took a photo of the bruising on her arm where she said the appellant had bitten her (exhibits 1 and 2). During cross-examination, the appellant’s trial counsel had the complainant demonstrate that she could bite her own arm but she denied that she did so. The appellant in giving his evidence denied that he did anything to cause the bruising on the complainant’s arm that was shown in the photograph. The appellant did not recall seeing the bruise on the complainant’s arm. Counts 2 and 3 concerned conduct that arose out of an argument between the appellant and the complainant on 8 March 2021. The complainant said they were in the laundry when the appellant put his right hand around the complainant’s throat, pushed her back by the throat up against the wall and squeezed her throat until the complainant could not breathe (count 2). The complainant estimated that she was unable to breathe for around 10 seconds. The complainant could not remember how they got from the laundry to the lounge room but the complainant was bent over the arm of the couch with the appellant’s hand in the back of her hair banging her head and face into the couch five or six times. The complainant said the appellant let her go, she went to their daughter’s bedroom and picked her up, the appellant then grabbed the sleeve of her dress and dragged the complainant to the front door and he pushed her out the front door.

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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CITATION:	R v LBD [2023] QCA 266
PARTIES:	R v LBD (appellant)
FILE NO/S:	CA No 177 of 2023 DC No 91 of 2022
DIVISION:	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, considered
COUNSEL:	T A Ryan KC, with H Edwards, for the appellant M A Green for the respondent
SOLICITORS:	BJH Law for the appellant Director of Public Prosecutions (Queensland) for the respondent