R v LBH

Case [2025] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

R v LBH [2025] QCA 97

PARTIES:

R
v
LBH
(appellant)

FILE NO/S:

CA No 104 of 2024
DC No 234 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 14 May 2024 (Cash KC DCJ)

DELIVERED ON:

6 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2025

JUDGES:

Boddice and Bradley JJA and Kelly J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted after trial before a jury of one count of maintaining a sexual relationship with a child – where the only evidence against the appellant came from the complainant – whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after trial before a jury of one count of maintaining a sexual relationship with a child – where there was delay in the making of a complaint – where the complainant had access to transcripts of her interviews with police and of her previous evidence – whether, due to delay in the making of a complaint, there was a significant forensic disadvantage in challenging, producing or giving evidence in the conduct of the case – whether the failure of the trial judge to direct the jury specifically as to the potential for the access to the transcripts to have adversely impacted on the complainant’s account, could have materially affected the jury’s verdict

Evidence Act 1977 (Qld), s 132BA

Brawn v The King [2025] HCA 20, applied
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v BEA[2023] QCA 78, applied

COUNSEL:

A J Kimmins for the appellant
M A Green for the respondent

SOLICITORS:

Otsanda Law for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. BODDICE JA:  On 14 May 2024, a jury found the appellant guilty of one count of maintaining a sexual relationship with a child.

  2. On the same date, the appellant was sentenced to imprisonment for four years, suspended after serving imprisonment of two years, for an operational period of four years.

  3. The appellant appeals his conviction, on four grounds. First, that the verdict of the jury was unreasonable and unable to be supported by the evidence. Second, that the trial judge erred in failing to provide a direction consistent with s 132BA of the Evidence Act 1977 (Qld). Third, that the trial judge erred in failing to provide a direction on the significance of the complainant’s access to transcripts…

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R v LBH [2025] QCA 97
Case
[2025] QCA 97
Decision Date

CaseChat Overview and Summary

In the matter of R v LBH, the appellant sought to challenge his conviction for maintaining a sexual relationship with a child, arguing that the jury's verdict was unreasonable and that there had been a miscarriage of justice due to the trial judge's failure to give certain directions to the jury. The appellant's appeal hinged on the argument that the complainant's evidence, which was the sole evidence against him, was vague and inconsistent, and that the jury should have been directed to closely scrutinise it. The court was required to determine whether the jury's verdict was unreasonable or insupportable having regard to the evidence and whether the trial judge's failure to give certain directions amounted to a miscarriage of justice.

The court assessed the sufficiency and quality of the evidence, taking into account the advantages the jury had in seeing and hearing the witnesses. The court found that the complainant's evidence, although somewhat vague, was consistent in its central allegations of regular sexual contact. The court concluded that it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt, and that the verdict was not unreasonable. The court also found that there was no miscarriage of justice due to the trial judge's failure to give the claimed directions, as the jury had already been properly directed on the limited use they could make of the complainant's evidence.

Based on the court's reasoning, the appeal was dismissed. The court found that the evidence was sufficient to support the jury's verdict, and that there had not been a miscarriage of justice due to the trial judge's failure to give certain directions. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant elected to neither give, nor call evidence at trial.EvidenceComplainant The complainant gave evidence that she was now 21 years of age and employed as a disability support worker, while studying criminal justice at university. The complainant said when she was growing up, she lived with her parents and four male siblings; two older and two younger. The appellant was her grandfather on her father’s side. The complainant said that when she was at primary school, she lived about a seven minute drive from the appellant’s residence. She would visit the appellant and his wife about once a week, on weekends. Her parents would drive her to the house, drop her off and leave. Sometimes the complainant’s siblings were with her. On occasions she would stay overnight. The grandparents were generally both at home. The complainant said that the grandparents lived in an old Queenslander. It had two bedrooms. There was a big yard with a shed. Nearby was a chicken pen. The appellant housed a boat in the shed. The shed also had some couches, a mattress on the ground and a tool bench along its edge. The complainant said that there was a compartment in the front end of the boat with a seating area. The appellant would take her into that compartment “very often”.[1] He would sit her down and place his hands on her body inappropriately, touching her skin. He would place his hands on her chest and on her vagina. He put the tip of his fingers in her vagina. He would use both hands. He also used his hands to take his pants off. He would make the complainant sit on his lap, without any pants or underwear. The appellant’s penis was never hard, but he rubbed it against her vagina. The appellant also put his tongue on her.[1]AB 80/35. The complainant said the touching of her chest would occur every time the appellant took her into the compartment in the boat. That was nearly every time she was at his residence. She was about in year 2 when she started to attend the appellant’s house. It went on for years. When asked at what age it stopped, the complainant said, “I’d make an assumption of age nine”.[2] The complainant said that on each of the occasions that she was with the appellant in the compartment of the boat, the appellant did not say anything. The complainant also did not say anything.[2]AB 82/12. The complainant said she had a memory of sitting down on the appellant’s leg with his pants around his ankles and he grabbed her hips and moved her front and back on his lap. He would do this once a fortnight, for 20 minutes. She had only one memory of the appellant putting his finger in her vagina. That occurred outside of the compartment, whilst she was lying on her back on the floor of the boat. The appellant was seated at the end of her legs. She remembered a sharp pain when he put the tip of his finger in her vagina, for maybe a minute. He moved it a little bit in a small flicking motion. He stopped because it hurt. The complainant said that she also had a vague memory of the appellant doing things to her in his bedroom, when his wife was not at home. The appellant’s wife was home when he did things to the complainant inside the boat.

Decision

Reasons for decision

In any event, it would not have been appropriate for the trial judge to direct the jury that the failure of those persons to give evidence, meant the jury ought to closely scrutinise the complainant’s evidence. That being so, there is no direction that the trial judge could practically have given, in addition to what had already been given as to the limited use the jury could make of evidence of preliminary complaint.Conclusion The appellant has not established that the verdict of the jury was unreasonable, or that there has been a miscarriage of justice by reason of the trial judge’s failure to give any of the claimed directions.Orders I would order:1. The appeal be dismissed. BRADLEY JA: I have assessed the sufficiency and quality of the whole of the evidence, in the context in which the appeal was brought. I have reviewed and assessed the features of the evidence that support the appellant’s case and the Crown’s case on appeal as advanced in their respective written and oral submissions. I agree with the analysis of the evidence by Boddice JA and with his Honour’s conclusion that it was open to the jury to consider the complainant’s statements or anger towards members of her family to have been consistent with her being a credible and reliable witness, upset at the conduct of the appellant, as her grandfather. For the reasons stated by his Honour, I agree that, on the whole of the evidence, it was not unreasonable for the jury to have decided there was no reasonable doubt as to the proof of the appellant’s guilt. I also agree with the reasons and conclusions of Boddice JA with respect to each of the other grounds of appeal raised by appellant. It follows that I concur with his Honour’s conclusion that the appeal should be dismissed. KELLY J: I have made my own assessment of the evidence as a whole. I have had regard to the features of the evidence emphasised by the appellant’s arguments. I agree with the conclusion of Boddice JA that an assessment of the record as a whole does not support a conclusion that the verdict of guilty was unreasonable and I agree with his Honour’s reasons for that conclusion. I also agree with his Honour’s reasons as they concern the other grounds of appeal and with the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

In cross-examination, Vanessa agreed that there was a conversation between police and the complainant on 30 November 2020 and a further conversation on 12 August 2021. There had been a conversation between police and the complainant on 16 July 2018. There was no mention at all of any alleged offending by the appellant in the 2018 conversation. There was mention of the appellant and his wife in that conversation. At no point in the communication with police in 2020 and 2021, did the complainant explain that there was a delay in her allegations, due to a plan to graduate and then go and get justice.ConsiderationGround 1 The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires an appellate court to undertake its own independent assessment of the record, to determine whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt. In undertaking that independent assessment, the appellate court is to give due regard for the jury’s role in determining the appellant’s guilt and for the advantages the jury had in seeing and hearing the witnesses give evidence.[5] However, if the independent assessment of the record reveals discrepancies, inconsistencies, or other evidence which, notwithstanding those advantages, are of such a nature that a reasonable doubt ought to have been entertained as to the appellant’s guilt of the offence, the verdict of the jury is to be set aside as unreasonable.[6][5]Dansie v The Queen [2022] HCA 25 at [38].[6]Pell v The Queen (2020) 268 CLR 123 at [39]. The appellant submits that the verdict of the jury was unreasonable, as the only evidence against the appellant came from the complainant, in circumstances where there was an evolving vague narrative in the context of antipathy towards her family, including evidence of openly expressed hostility and a preparedness to lie in court, shortly prior to making the complaint to police. However, an independent assessment of the record as a whole, does not support a conclusion that the verdict of guilty was unreasonable. Whilst there was a vagueness in relation to specific occasions of sexual contact between the appellant and the complainant, there was a consistency in the complainant’s account of regular touching by the appellant of the complainant’s breasts and vagina, underneath her clothes, when she attended the appellant’s residence, whilst she was in a boat, in a shed, or in the appellant’s bedroom. The complainant did not deviate from the centrality of those allegations in cross-examination. Further, whilst the complainant did provide some additional detail in evidence, about masturbation, and movement of the appellant’s finger on the occasion he penetrated her vagina with his fingertip, those additions did not involve marked inconsistencies. They were consistent with the provision of further detail by a credible witness. As such they did not detract from the inherent consistency in the complainant’s evidence.