R v LBG - [2024] QCA 205

SUPREME COURT OF QUEENSLAND

CITATION:

R v LBG [2024] QCA 205

PARTIES:

R
v
LBG
(appellant)

FILE NOS:

CA No 232 of 2023
DC No 97 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 2 November 2023 (Everson DCJ)

DELIVERED ON:

Date of Orders: 17 October 2024
Date of Publication of Reasons: 1 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2024

JUDGES:

Bond JA and Vaughan AJA and Davis J

ORDERS:

Date of Orders: 17 October 2024

1.   Allow the appeal.

2.   Set aside the convictions on counts 2 to 4 of the indictment.

3.   Order a retrial on counts 2 to 4 of the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of choking in a domestic setting, one count of rape (domestic violence offence) and one count of sexual assault with a circumstance of aggravation – where all offences related to a singular complainant – where the jury were provided with evidence of text messages between the complainant and the appellant – where in a joint admissions document the appellant admitted the text messages were sent and received – where the jury were not directed that the appellant did not admit the truth of the things asserted in the messages – whether a miscarriage of justice was occasioned by the jury not being properly directed as to the appellant’s admissions pertaining to the text messages

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – where the appellant was charged with two counts of choking in a domestic setting (counts 1-2) on a four-count indictment – where the appellant was convicted on count 2 but acquitted on count 1– where both counts were alleged to have occurred within a short period and on the same occasion – where the appellant submitted that the verdict on count 2 was unreasonable given the appellant’s acquittal on count 1 – whether the verdicts were inconsistent – whether the alleged inconsistency rendered the verdict on count 2 unreasonable – whether the appellant should be acquitted in relation to count 2 of the indictment

Criminal Code (Qld), s 315A, s 349, s 352, s 564, s 644
Evidence Act 1977 (Qld)

R v Bond[2018] QCA 130, cited
R v Brown[2020] QCA 159, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited

COUNSEL:

S J Farnden KC for the appellant
J D Finch for the respondent

SOLICITORS:

Dib & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: For the reasons given by Davis J, I joined in the making of the court’s orders on 17 October 2024.
VAUGHAN AJA: I joined in the court’s orders of…

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 LBG

Details

AGLC: R v LBG [2024] QCA 205
Case: [2024] QCA 205
Decision Date: 17 October 2024

CaseChat Overview and Summary

The appeal before the court was against the conviction of LBG, who was found guilty of choking in a domestic setting, rape (domestic violence offence), and sexual assault with a circumstance of aggravation. The offences all related to a single complainant. The jury was provided with evidence of text messages exchanged between the complainant and LBG, which were admitted by LBG in a joint admissions document. However, the jury was not properly directed that LBG did not admit the truth of the things asserted in the messages. The court was tasked with determining whether this omission led to a miscarriage of justice.

LBG contended that the jury's failure to be properly directed about the nature of the admissions led to an unfair trial. The court considered whether the trial judge's directions to the jury were sufficient in light of the admissions and the subsequent analysis of the text messages. The judge's directions implied that the content of the admissions was proven beyond reasonable doubt, but did not clarify that only the sending and receipt of the messages were admitted, not their content. The court examined whether this constituted a misdirection that could have influenced the jury's verdict.

The court found that the trial judge's directions to the jury were indeed misleading. By not clarifying that the content of the text messages was not admitted, the judge left the jury with an incorrect understanding of the evidence. This misdirection had the potential to affect the jury's consideration of the text messages, which were a significant part of the evidence against LBG. The court concluded that this error was a miscarriage of justice that warranted setting aside the convictions and ordering a retrial.

Date of Orders: 17 October 2024
1. Allow the appeal.
2. Set aside the convictions on counts 2 to 4 of the indictment.
3. Order a retrial on counts 2 to 4 of the indictment.

Orders

Orders of the court

Date of Orders: 17 October 2024

1. Allow the appeal.

2. Set aside the convictions on counts 2 to 4 of the indictment.

3. Order a retrial on counts 2 to 4 of the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Later in the trial but before they had retired to consider their verdicts, the jury produced a note in terms “Can we have the admissions sheet”. His Honour directed the jury:“And that’s exhibit 2. And I’d previously directed that you all get a copy of it. You’ll see that it contains a number of very material facts. They are admitted between the parties. So as I said to you yesterday, everything in the admissions is proved beyond reasonable doubt. So you can start your consideration of the issues in the trial from the premise that everything here is true beyond reasonable doubt. …” (emphasis added) Again, his Honour did not take the opportunity to make clear to the jury that the truth of the assertions made in the text messages was not admitted. In summing up the case, the trial judge gave some general directions about evidence. These included:“Some evidence may directly prove a thing. A person who saw or heard or did something may have told you about that from the witness box. The documents and other things put into evidence as exhibits may also tend directly to prove facts …” From that basic direction that the “exhibits may also tend directly to prove facts”, his Honour went on to refer to the admissions document:“On the facts before you, you can also look at the admissions which are exhibit 2 and ask yourself if these admitted facts that are taken to be proved beyond reasonable doubt support the evidence of a particular witness. …” The invitation to consider the admissions and consider whether they support the evidence of a particular witness is not accompanied by any explanation that all that is admitted is the sending and receipt of the text messages, not the truth of their content. What followed then in the summing up were references to various evidence given by each of the complainant and the appellant. His Honour’s analysis was limited to contrasting the general evidence of the complainant as to escalating violence with the evidence of the appellant that there were only verbal disagreements. After that analysis, the judge told the jury:“So you have got two completely different versions of this background of alleged domestic violence from 8th of April 2020. So what might assist you is to look at what is admitted in terms of communications between the parties.” Therefore, after directing the jury that the admissions might “support the evidence of a particular witness” and then highlighting evidence from the complainant and the appellant of what actually occurred, the jury was then directed to turn to the text messages. What followed was an analysis by his Honour of the text messages, including:“The first one is 27.10.21, so that is within the period that both of them have given these completely different versions. If you look down, you will see that they’re distinguished between their first initials, A meaning the complainant, and M being the defendant, and part of these include the following lines, “You are disgusting”, she says, “and an abuser”, she says. And then she says:I will be telling everyone what has been going on for the last six years.There is no denial. He just says:Go and do your work -”

CITATION:	R v LBG [2024] QCA 205
PARTIES:	R v LBG (appellant)
FILE NOS:	CA No 232 of 2023 DC No 97 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 2 November 2023 (Everson DCJ)
DELIVERED ON:	Date of Orders: 17 October 2024 Date of Publication of Reasons: 1 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2024
JUDGES:	Bond JA and Vaughan AJA and Davis J
ORDERS:	Date of Orders: 17 October 2024 1. Allow the appeal. 2. Set aside the convictions on counts 2 to 4 of the indictment. 3. Order a retrial on counts 2 to 4 of the indictment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of one count of choking in a domestic setting, one count of rape (domestic violence offence) and one count of sexual assault with a circumstance of aggravation – where all offences related to a singular complainant – where the jury were provided with evidence of text messages between the complainant and the appellant – where in a joint admissions document the appellant admitted the text messages were sent and received – where the jury were not directed that the appellant did not admit the truth of the things asserted in the messages – whether a miscarriage of justice was occasioned by the jury not being properly directed as to the appellant’s admissions pertaining to the text messages CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS – INCONSISTENCY BETWEEN FINDINGS OF JURY – INCONSISTENCY BETWEEN DIFFERENT FINDINGS – GENERALLY – where the appellant was charged with two counts of choking in a domestic setting (counts 1-2) on a four-count indictment – where the appellant was convicted on count 2 but acquitted on count 1– where both counts were alleged to have occurred within a short period and on the same occasion – where the appellant submitted that the verdict on count 2 was unreasonable given the appellant’s acquittal on count 1 – whether the verdicts were inconsistent – whether the alleged inconsistency rendered the verdict on count 2 unreasonable – whether the appellant should be acquitted in relation to count 2 of the indictment Criminal Code (Qld), s 315A, s 349, s 352, s 564, s 644 Evidence Act 1977 (Qld) R v Bond[2018] QCA 130, cited R v Brown[2020] QCA 159, cited R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
COUNSEL:	S J Farnden KC for the appellant J D Finch for the respondent
SOLICITORS:	Dib & Associates for the appellant Director of Public Prosecutions (Queensland) for the respondent