District Court at Dalby – Date of pre-trial ruling: 17 December 2020 – [2020] QDCPR 125 (Devereaux SC CJDC); Date of Conviction: 31 May 2022 (Horneman-Wren SC DCJ)
DELIVERED ON:
9 April 2024
DELIVERED AT:
Brisbane
HEARING DATE:
22 February 2024
JUDGES:
Bowskill CJ and Morrison and Bond JJA
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL COUNTS – where the appellant was charged on one indictment for 20 counts of sexual offending against five separate complainant children – where on a pre-trial application to sever the indictment so as to obtain separate trials with respect to each complainant, the principal question for the primary judge was whether the evidence of each complainant on the counts concerning them was cross-admissible in relation to the counts concerning other complainants – where the primary judge found counts 1 to 17 involving three separate complainants should be heard together and remaining counts should be tried separately – where the primary judge identified the basis on which the cross-admissible evidence was found to be relevant – where the primary judge implicitly evaluated probative force – where the primary judge, allegedly omitted features impacting unity between the counts and allegations of underlying character – whether the primary judge erred in concluding the evidence was cross-admissible – whether the primary judge erred in the pre-trial refusal to order a separate trial with respect to counts 1 to 13 on the indictment
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was charged on one indictment for 20 counts of sexual offending against five separate complainant children – where the appellant submitted that a miscarriage of justice was occasioned by the prosecutor relying on coincidence reasoning with respect to the cross-admissibility of the evidence between complainants – where the summing up placed emphasis upon propensity, the case was put to the jury by the Crown on a wider basis – where the central thrust of the Crown case was that the evidence established propensity, it was also relied upon as a foundation for believing the boys because the similar evidence eliminated implausibility or coincidence – where the primary judge may have focused on tendency, that does not mean the evidence was limited to that alone – where there was an absence of any complaint that the prosecutor had overstepped the mark and the absence of any application for a redirection – where the appellant was unable to articulate what was said to be the absent proper direction, beyond saying that the trial judge should have directed the jury’s attention to how the offending…
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.
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Details
AGLC
R v Lbe [2024] QCA 53
Case
[2024] QCA 53
Decision Date
CaseChat Overview and Summary
The case of R v Lbe involved the appellant, who was charged with 20 counts of sexual offences against five separate child complainants. The dispute primarily centred on the admissibility of cross-admissible evidence in the trial and whether there was a miscarriage of justice due to the improper admission or rejection of evidence. The case was heard by the court of appeal. The key legal issues were whether the primary judge erred in concluding that the evidence was cross-admissible and if the refusal to order separate trials for certain counts amounted to a miscarriage of justice. The court examined whether the trial judge correctly assessed the probative force of the cross-admissible evidence and whether the summing up correctly instructed the jury on the use of that evidence.
The court of appeal found that the primary judge did not err in concluding that the evidence was cross-admissible. The evidence was left on a wider basis to the jury, encompassing not only the tendency of the appellant to engage in sexualised conduct with young boys but also considering it as coincidence evidence to eliminate implausibility. The trial judge’s summing up correctly instructed the jury on the broader basis of using the cross-admissible evidence, including its role in establishing propensity and eliminating coincidence. The court also determined that there was no miscarriage of justice as the defence did not articulate a specific proper direction that was absent, and the absence of a complaint by the defence or an application for a redirection suggested that the trial was conducted fairly.
The court dismissed the appeal, upholding the original decisions of the primary judge regarding the admissibility of cross-admissible evidence and the refusal to order separate trials for certain counts. This decision ensures that the trial process was conducted within the appropriate legal framework and that the appellant's rights were adequately protected throughout the proceedings.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Although the primary judge focused on propensity as the justification for cross-admissibility in the pre-trial ruling, the evidence was left on a wider basis to the jury. In the course of the summing up the trial judge said:[41]“The prosecution relies on the evidence of each sexual offence alleged against the defendant in respect of each of the complainants in proof of the offences alleged against each of the other complainants. That is, they rely on the evidence of [A] in proof of the case against the defendant concerning [B] and [C]. They rely on the evidence of [B] in proof of the case against the defendant concerning [A] and [C] and they rely on the evidence of [C] in proof of the case against the defendant concerning [A] and [B]. The way they do that is this: the prosecution alleges that the evidence in respect of each of the complainants demonstrates a tendency of the defendant to have a sexual interest in young boys upon which he was prepared to act, particularly when he had the opportunity when they were in his care.The prosecution argues that the evidence relating to each boy makes it more likely that the defendant committed the offences with which he is charged in respect of each other boy. Now, you can only use this evidence if you are satisfied beyond reasonable doubt that the defendant did act, as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant or boys, upon which he was willing to pursue, or demonstrates a propensity or tendency to engage in sexualised conduct with young boys, particular in circumstances where he had those boys in his care, in considering whether you are satisfied beyond reasonable doubt that such conduct – if you are satisfied beyond reasonable doubt that it did occur – considering whether you are satisfied beyond reasonable doubt that such conduct does demonstrate such a tendency or propensity to act in that way, you would also consider all the other evidence, particularly of the other children which might be contrary to the existence of such a tendency or propensity.”[41]AB 84, line 27 to AB 85, line 3, emphasis added.Consideration The appellant’s contention relied upon the passage from the prosecutor’s address, set out in paragraph [45] above. It was contended that:(a)the cross-admissible evidence was admitted only on the basis that it went to tendency;(b)if it was to be admitted to be used for coincidence reasoning, the “wrong test” (for admissibility) was applied;(c)the prosecutor did not foreshadow that she intended to rely upon the evidence as coincidence evidence; use for that purpose was improper;(d)the defence was disadvantaged by that;(e)the trial judge did not direct the jury about use of the evidence for coincidence reasoning; and(f)that occasioned a miscarriage of justice. For a number of reasons we do not accept these contentions. First, the evidence was not admitted on a limited basis. The Crown advanced its admission on a number of bases – see paragraph [7] above. Whilst the primary judge may have focused on tendency, that does not mean the evidence was limited to that alone. That defence counsel understood that might be inferred from the absence of any complaint that the prosecutor had overstepped the mark and the absence of any application for a redirection.