R v LBF

Case [2024] QCA 129

SUPREME COURT OF QUEENSLAND

CITATION:

R v LBF [2024] QCA 129

PARTIES:

R
v
LBF
(appellant)

FILE NO/S:

CA No 32 of 2024
DC No 270 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 February 2024 (Farr SC DCJ)

DELIVERED ON:

12 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2024

JUDGES:

Mullins P and Boddice JA and Crowley J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under 16 – where the appellant was found not guilty of four counts of rape and one count of choking in a domestic setting – where there were aspects of the complainant’s evidence which may have caused a jury to question the reliability of her evidence that the charged acts were without her consent – whether the verdicts of guilty were inconsistent with the verdicts of not guilty for the remaining counts

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v CX[2006] QCA 409, cited

COUNSEL:

K V Juhasz for the appellant
D Nardone for the respondent

SOLICITORS:

Guest Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Boddice JA.

  2. BODDICE JA:  On 13 February 2024, the appellant pleaded not guilty to one count of maintaining a sexual relationship with a child, four counts of rape, one count of choking in a domestic setting and one count of indecent treatment of a child under 16.  All counts were domestic violence offences.

  3. On 16 February 2024, a jury found the appellant guilty of the count of maintaining a sexual relationship with a child and of the count of indecent treatment of a child under 16.  The jury found the appellant not guilty of the four counts of rape and the one count of choking in a domestic setting.

  4. The appellant appeals his convictions on the grounds that the verdicts of guilty are inconsistent with the verdicts of not guilty for the remaining counts.

    Indictment

  5. All of the counts concerned the same 15 year old female complainant.  At the time of the offences, the appellant was 18 years of age and in a relationship with the complainant’s older sister.

  6. The maintaining count (count 1) was particularised as the appellant having maintained a sexual relationship with the complainant between 4 September 2020 and 25 October 2020, by committing more than one sexual act against her, namely:

    (a)one or more of the acts constituting the rape counts (counts 2 to 5) and the indecent treatment of a child count (count 7);

    (b)and/or an act or acts of penetration of her vagina with his finger;

    (c)and/or an act or acts of penetration of her vagina with his…

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AGLC
R v LBF [2024] QCA 129
Case
[2024] QCA 129
Decision Date

CaseChat Overview and Summary

The appellant, LBF, was convicted by a jury of one count of maintaining a sexual relationship with a child and one count of indecent treatment of a child under 16. The appellant was acquitted on four counts of rape and one count of choking in a domestic setting. The case came before the court on appeal against the conviction and sentence. The primary legal issue before the court was whether the verdicts of guilty for maintaining a sexual relationship with a child and indecent treatment of a child under 16 were inconsistent with the verdicts of not guilty for the remaining counts. The court considered whether there were aspects of the complainant’s evidence which may have caused a jury to question the reliability of her evidence that the charged acts were without her consent.

The court held that the determination of a ground of appeal asserting inconsistency in a jury’s verdict upon different counts, required a consideration of logic and reasonableness. The court noted that if the appellate court could properly reconcile the verdicts, a ground of appeal on the basis of inconsistency would be unsuccessful. The court further noted that respect for the function of the jury required appellate courts to be reluctant to accept submissions that verdicts were inconsistent in the sense described, and if there was a proper way by which an appellate court could reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion would generally be accepted. The court held that the verdicts of guilty were not inconsistent with the verdicts of not guilty for the remaining counts. The verdicts of guilty were consistent with an acceptance of the complainant’s evidence that the appellant maintained a sexual relationship with her, a 15-year-old girl. The verdicts of not guilty of the remaining counts were consistent with the jury affording the appellant the benefit of the doubt as to whether his sexual interactions with the complainant were without her consent. The verdicts of guilty were not an unacceptable affront to logic and common sense.

The appeal was dismissed. The conviction and sentence of the appellant were affirmed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At issue at trial was whether there had been any sexual contact between the complainant and the appellant.Evidence The complainant first spoke to police on 24 October 2020. She told them the last time the appellant had tried something was the previous night, but that nothing actually happened; the appellant had been trying for a long time, but she had woken up to him and told him to go away; she said she was a deep sleeper and the appellant had been coming in and kissing her a lot; it first started to happen months ago, but he had been weird with her for a long time; he had been coming on to her and her sister had noticed it. The complainant said that when he had tried the previous night, she stopped him. The appellant said if she made a scene it was going to hurt her sister. The appellant had also told her sister that the complainant came on to him.[1][1]AB 436/34. In her interviews with police, the complainant said her first recollection of sexual penetration by the appellant was around Father’s Day in 2020 and after the wedding of her eldest sister. Prior to that, the appellant had been “very touchy”, but in a non-sexual way. The complainant said she had been sitting on a couch with the appellant. They had a blanket over them. The appellant put his hand inside the complainant’s pants and forcefully stuck his fingers inside her vagina. It hurt and she asked him to stop, but he kept going until her sister started to approach from elsewhere in the house. The complainant said her sister asked the appellant what was happening and the appellant said he was tickling the complainant. Her sister told the appellant to keep his distance. A few minutes later, the appellant told the complainant to say he was tickling her because she would hurt her sister if she found out and “ruin everything”.[2][2]AB 231/5. The complainant said on the following day, whilst the appellant was driving her to collect some food, the appellant roughly forced his fingers into her vagina. The complainant said digital penetration occurred every time she drove with the appellant. Overall, it happened approximately 12 times. The appellant also regularly touched and kissed her.[3] The complainant said on another occasion at the house, the appellant came up from behind her, grabbed her bottom, pushed her against the wall and tried to force his finger into her bottom. She told him to stop, but every time thereafter when she walked past him, he would aggressively grab her bottom.[3]None of these occasions were particularised by date or particular circumstances. The complainant said the first occasion of penile rape occurred when she was asleep in her bedroom. It was nighttime. The complainant awoke to the appellant on top of her. The appellant put his penis into her vagina and pushed it in and out approximately three times. When she told him to stop and get off, the appellant left the room. The complainant said she felt really sore the next day and she saw a little bit of blood. She felt pain for approximately a week or two thereafter.

Decision

Reasons for decision

It is also relevant that alternative verdicts for offences which did not contain an element of consent, were not left to the jury in respect of the counts of rape.Conclusion The verdicts of guilty of counts 1 and 7 are consistent with an acceptance of the complainant’s evidence that the appellant maintained a sexual relationship with her, a 15 year old girl. The verdicts of not guilty of the remaining counts are consistent with the jury affording the appellant the benefit of the doubt as to whether his sexual interactions with the complainant were without her consent. The verdicts of guilty are not an unacceptable affront to logic and common sense. They are consistent with the jury having carefully considered the evidence in accordance with the judge’s directions and reaching verdicts consistent with their obligation to only find the appellant guilty of an offence, if satisfied of all elements, beyond reasonable doubt. Further, there were sufficient uncharged acts particularised in the maintaining count to support the verdict of guilty, notwithstanding verdicts of not guilty of the rape counts.Order I would order:1.The appeal be dismissed. CROWLEY J: I agree with Boddice JA.

Ratio Decidendi

Legal Principle Established

The complainant’s sister described the appellant as flirtatious, but there was nothing that he did that alarmed her, although she did not like it when anyone else was close to him. She spoke to him about the incident on the couch because he was sitting close to the complainant and had his fingers on the end of her thigh. The complainant was leaning away. She told him she was not comfortable with that and could he not do that again. He said, “no worries”.[13][13]AB 184/16.Consideration The determination of a ground of appeal asserting inconsistency in a jury’s verdict upon different counts, requires a consideration of logic and reasonableness. If an appellate court can properly reconcile the verdicts, a ground of appeal on the basis of inconsistency will be unsuccessful.[14][14]MacKenzie v The Queen (1996) 190 CLR 348. The relevant principles were summarised in R v CX:[15]“1.Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.2.Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?3.Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.4.The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.5.Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.”[15][2006] QCA 409 at [33].