R v LBK

Case [2025] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v LBK [2025] QCA 111

PARTIES:

R
v
LBK
(appellant/applicant)

FILE NO/S:

CA No 215 of 2024
DC No 968 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 27 September 2024 (Fantin DCJ)

DELIVERED ON:

24 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2025

JUDGES:

Mullins P and Boddice JA and Crowley J

ORDER:

Conviction appeal:

1.   Appeal dismissed.

Sentence appeal:

1.   Leave to appeal granted.

2.   Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of 1 count of aggravated sexual assault and 2 counts of rape – where the complainant’s evidence was that the defendant committed sexual acts against her and that she had said “no” and “stop” both prior to the acts and multiple times throughout – where the appellant’s evidence was that he never heard the complainant say “no” prior to or during the sexual acts – where the appellant submitted that the jury should have found that there was a genuine mistake of fact – whether it was open to the jury, on the whole of the evidence, to find the appellant guilty of each of the charges and find that the Crown excluded the defence of mistake of fact beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the statutory language provided that the trial judge should direct the jury not to act on any “preconceived idea” – where the trial judge directed the jury variously not to act on any “preconceived idea”, “preconceived expectation”, “preconceived notion”, and “preconceived notion or myth” – where the appellant submitted that the use of various terms was convoluted and confusing for the jury, that the trial judge should have defined “preconceived idea”, and that the trial judge should have provided an example of a “preconceived idea” – where the trial judge then redirected the jury that they should “apply their own wisdom and knowledge of the human condition” – where the appellant submits that the direction regarding “preconceived ideas” and the redirection could not be reconciled – whether the use of various terms similar to preconceived “idea” in the trial judge’s directions, the failure to provide an example, and the difficulty in reconciling the direction with the redirection amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where s 103ZY of the Evidence Act 1977 (Qld) provides that in respect of differences in a complainant’s account the trial judge must direct the jury that “experience” shows certain relevant matters – where the trial judge directed the jury that “experience and research shows” certain relevant…

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Details
AGLC
R v LBK [2025] QCA 111
Case
[2025] QCA 111
Decision Date

CaseChat Overview and Summary

The appellant, LBK, appealed against his conviction and sentence for aggravated sexual assault and two counts of rape. The jury found him guilty based on the complainant's testimony that she repeatedly said "no" and "stop" during the assault, while the appellant claimed he did not hear any such objections and genuinely believed the complainant was consenting. The appellant argued the verdict was unreasonable, the jury should have accepted his defence of mistake of fact, and the trial judge's directions to the jury were confusing and potentially prejudicial. Additionally, the appellant argued the sentencing judge erred in not considering the possibility that he honestly but unreasonably believed the complainant was consenting.

The court examined whether the jury's verdict was unreasonable given the evidence, whether the trial judge's directions caused a miscarriage of justice, and whether the sentencing judge erred in not considering the appellant's mistaken belief in consent. The court found the jury's verdict was open to them based on the complainant's credible evidence and rejected the appellant's claim of a genuine mistake of fact. The court also found no miscarriage of justice resulted from the trial judge's use of various terms to describe "preconceived ideas" and the subsequent redirection, as it did not prejudice the appellant. Regarding the sentencing, the court concluded the sentencing judge was correct in rejecting the appellant's mistaken belief defence as not supported by the evidence.

The appeal against the conviction was dismissed. The appeal against the sentence was allowed, but the appeal was ultimately dismissed as the court found no grounds for interference with the sentence. The court upheld the original sentence of six years and six months for each count of rape and four years for the aggravated sexual assault, with no parole eligibility set.

Orders

Orders of the court

Conviction appeal:

1. Appeal dismissed.

Sentence appeal:

1. Leave to appeal granted.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, this ground of appeal is not established.Conclusion As none of the appellant’s grounds of appeal succeed, his appeal against his convictions must be dismissed.Sentence appealGround 5: Specific error – factual basis not supported by the evidence The sentencing judge imposed concurrent sentences of six years and six months’ imprisonment for each of the two counts of rape and four years’ imprisonment for the aggravated sexual assault. Her Honour declined to fix a date for parole eligibility. In the course of sentence submissions, the Crown prosecutor had contended that on the facts established by the evidence at trial, the offending was very serious and amounted to a “gang rape” by two males of a young female, committed in her own home. The Crown prosecutor submitted that the evidence established that the complainant had clearly said “no” on multiple occasions, attempted to move away from the men and initially attempted to pull her clothes down, but she was ignored. Defence counsel submitted that although the appellant had been found guilty, it was open for the sentencing judge to conclude that the jury did not entirely accept the complainant’s version of events. He submitted that this followed from the “undisputed evidence” that there had been flirtatious behaviour on the balcony, that the complainant had said she would shower and shave and went to the bathroom, that the complainant then came out only in a towel, and that the complainant had said “Daddy” to the appellant during the act of penile rape. Defence counsel also pointed to the things that the appellant had said in his interview with police, which grounded his belief as to consent. Thus, he submitted, it was open to the sentencing judge, applying s 132C of the Evidence Act and the Briginshaw standard,[33] to make a finding that the appellant had honestly and mistakenly believed the complainant was consenting to the sexual acts, albeit such a belief was not reasonable in the circumstances.[33]Briginshaw v Briginshaw (1938) 60 CLR 336. In reply, the Crown prosecutor submitted that the sentencing judge would not accept that the appellant had an honest and mistaken but unreasonable belief that the complainant had consented. She submitted that the appellant’s interview was self-serving and completely at odds with the complainant’s version and was obviously rejected by the jury. She submitted that the finding urged by defence counsel was simply not open. In dealing with this submission when sentencing the appellant, the sentencing judge stated:“I sentence you on the basis that the complainant made it clear to you, both in your presence and within earshot, repeatedly, by her words and her conduct, that she did not consent to your sexual conduct towards her. I am satisfied to the requisite standard of that. In my view, by its verdict, the jury rejected your account given in a police record of interview as credible and reliable, and accepted the complainant’s evidence as credible and reliable. I am comfortably satisfied to the requisite standard that you were aware that she was not consenting but that you proceeded with the sexual conduct despite the clear manifestation of her lack of consent.”Submissions

Ratio Decidendi

Legal Principle Established

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