R v PBG

Case [2020] QCA 224

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBG [2020] QCA 224

PARTIES:

R
v
PBG
(appellant)

FILE NO/S:

CA No 253 of 2019
SC No 378 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 6 September 2019 (Douglas J)

DELIVERED ON:

16 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2020

JUDGES:

Sofronoff P and Philippides and McMurdo JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with four counts of sexual offences committed against his half-sister, one count committed against his other half-sister and one count of drug supply, as well as two counts of indecent treatment of a child under 16, alleged to have occurred on the same occasion against each half-sister – where the appellant was found guilty of two counts of rape (counts 5 and 6) committed against his half-sister K and was acquitted of the other counts – where counts 5 and 6 occurred after the complainant attended a going away party at the appellant’s unit – where, after the complainant arrived at the party, no one was there except for the appellant’s flatmate and the appellant – where the complainant consumed alcohol and marijuana, listened to music and went to bed at the unit, with the appellant helping her up the stairs to his bedroom as she could not walk up the stairs unaided – where her next memory was waking up in the appellant’s bed the next morning – where, the next morning, the appellant gave the complainant $20 and told her to purchase the morning after pill – where count 5 concerned the appellant having non-consensual vaginal intercourse with K during the night when she was asleep – where count 6 concerned the appellant, the next morning, masturbating and requiring the complainant to put her mouth over his penis when he ejaculated – where evidence was given by the complainant K, the complainant’s half-sister, various family members including the mother of the appellant and the complainants, the appellant’s biological sister and half-sister of the complainants, the appellant’s flatmate and a police officer – where credibility featured prominently – whether, on the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of counts 5 and 6

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant’s biological sister and half-sister of the complainants gave evidence of confessional phone calls with the appellant – where the trial judge directed the jury that in order to use that evidence, they were required to be satisfied that the appellant made those statements and that those parts relied on as indicating guilt were true and accurate – where the trial judge also gave…

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AGLC
R v PBG [2020] QCA 224
Case
[2020] QCA 224
Decision Date

CaseChat Overview and Summary

In the case of R v PBG, the appellant was convicted of two counts of rape committed against his half-sister, K, and was acquitted of other charges including sexual offences against his other half-sister, drug supply, and indecent treatment of a child under 16. The convictions arose from incidents occurring after K attended a party at the appellant's unit where she became intoxicated. The next morning, she found herself in the appellant's bed with no recollection of the intervening events. The central issue for the court was whether the jury's guilty verdicts for counts 5 and 6 were supported by the evidence.

The court examined whether the jury's verdict was unreasonable or insupportable given the evidence. It considered the credibility of the witnesses, particularly K's account of her intoxicated state and the appellant's denials. The court noted that the jury had the advantage of observing the witnesses' demeanour and testimony. The confessional evidence from RC, the appellant's biological sister and half-sister of the complainants, was also a critical aspect of the case. The jury was entitled to accept RC's evidence of the appellant's confession, despite some inconsistencies, as it corroborated K's account of the events.

The court further addressed specific grounds of appeal concerning the trial judge's directions to the jury. These included whether the jury should have been directed to corroborate the confessional evidence, to treat it as a Shepherd fact, and to consider the delay in reporting the phone calls. The court found that the trial judge's directions were adequate and that no additional directions were necessary. The jury was properly guided in assessing the evidence, including the confessional statements.

In conclusion, the court found that the jury's verdicts for counts 5 and 6 were open on the evidence, and the appeal was dismissed. The convictions were upheld as the jury was entitled to reject the appellant's denials and accept the complainant's evidence of lack of consent.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Evidence was given by the following:(a)the complainants, K and RL;(b)KM, the mother of the appellant, K, RL and RC;(c)IM, the father of K and RL;(d)RC, the appellant’s biological sister and half-sister of K and RL;(e)RL’s partner, JE;(f)K’s partner, ZT;(g)GW, the appellant’s flatmate in Hervey Bay; and (h)Detective Sergeant Dwan.K’s evidence K was 28 years old at the time of the trial. She gave evidence that in December 1997 when she was seven years old, she and her family (her parents, her sister (RL), her younger brothers, her half‑sister (RC) and the appellant[1]) moved from Innisfail to Logan where they lived until 2002.[2] She shared a room with her sister RL. They had bunk beds until mid-1999 when they each had a single bed. Her brothers and the appellant slept in another room, where the brothers also shared a bunk bed and the appellant had his own single bed.[3] K’s parent’s room was adjacent to the two bedrooms.[1]AB at 127.38‑39.[2]AB at 127.16‑36.[3]AB at 129.25‑33.Count 1 K gave evidence of an incident that occurred one night when she and her sister were still sharing a bunk bed.[4] She said that she was asleep in the lower bunk and was woken up by the appellant shaking her on the arm and telling her to wake up.[5] She said he carried her past her parents room to his single bed. He placed her on his bed and lay behind her and was “spooning” her. He then he took her underwear off, pulled his boxer shorts down and she could feel his penis getting hard, as his penis was touching her.[6] She heard a “spit noise”[7] and he lifted up her right leg from behind and inserted his penis into her vagina.[8] This was the conduct alleged to constitute penile rape (count 1).[4]AB at 131.[5]AB at 131.30‑31.[6]AB at 132.31; 132.44-47.[7]AB at 132.16.[8]AB at 131.23‑28. She said that her two brothers were also present in the room.[9] The appellant told her to be quiet and not tell anyone and said, “Mum and dad won’t believe you”.[10] She did not say anything and felt scared.[11] She woke the next morning in her own bed and did not recall how she returned there.[12][9]AB at 132.11‑12.[10]AB at 132.33‑35.[11]AB at 133.1‑12.[12]AB at 133.16‑18. She said there were other instances where the appellant would come into her bedroom at night and wake her up, but they did not lead to sexual assault.[13] (The trial judge gave directions that these uncharged acts went to the appellant’s sexual interest in her.[14])[13]AB at 133.[14]AB at 133‑134.Count 2 and 3 K gave evidence of another incident which happened in the bedroom she shared with RL. It was sometime after mid-1999 when they had single beds. She and RL were sitting on either side of the appellant’s lap on her single bed. They were each sitting on one of his legs and the appellant had his hand around their waists and was kissing them.[15] The kissing occurred after he told them to give him a kiss. K said that the appellant kissed her, putting his tongue in her mouth (count 2). She pulled back and said, “ew”.[16] She said that the appellant did the same thing to RL (although she could not see whether he did anything with his tongue) who reacted in the same way (count 3).[17] The door to the bedroom was closed. Her mother entered the room after the kissing had finished. The appellant said, “everything’s okay” and “we’re just talking”. Her mother said okay and left.[18][15]AB at 135.16‑17.[16]AB at 135.21‑23.[17]AB at 135‑30.[18]AB at 135.41‑136.2.Counts 4 to 6

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Sixth, it was argued that the appellant’s evidence was supported in many respects by aspects of the prosecution case (for example, that his car was written off, he had no licence, that he did rely on lifts and got around on his bicycle post the accident in 2004, that he lived at Logan only post 2000, the bunk sleeping arrangements of the girls and the boys, the single bed sleeping arrangements that he was never on the single bed). In those circumstances, the appellant’s denials of counts 5 and 6 ought to also have caused the jury reasonable doubt. Consideration This was a case where credibility featured prominently. In considering whether the guilty verdicts were open on the evidence, it is particularly important to bear in mind the advantage that the jury had in assessing the testimony and demeanour of the witnesses. In relation to counts 5 and 6, the jury were entitled to reject the contention that RC’s confessional evidence was fabricated. Her evidence was not entirely favourable to K in so far as her account of the appellant’s confession was that the sexual activity was consensual and initiated by K. Her evidence of good relations with the appellant was supported by the appellant’s evidence of lack of animosity between himself and RC. The jury were also entitled to find that RC’s report of the appellant’s concern that K was pregnant was not a detail that she had likely to have learnt from other sources. Her evidence supported the inference concerning count 5 that penile intercourse had occurred and supported the inference arising from K’s evidence in that regard (of being given $20 to buy the morning after pill). The jury were alive to the inconsistencies raised in relation to RC’s evidence, which were matters raised by defence counsel and dealt with in the trial judge’s summing up. There was nothing in those inconsistencies which ought to have required the jury to view RC as an unreliable witness in relation to the confessional evidence she gave. The jury were entitled to accept K’s evidence of her intoxicated state on the evening in question which was supported by the evidence of GW that he, the appellant and K were drinking for hours and probably into the next morning and that they were all very intoxicated and not in a state to drive. On that basis, the jury was properly entitled to reject the evidence of K’s mother of K returning home having had a couple of drinks. The jury was entitled to accept K’s evidence of being so intoxicated that she needed help to go up the stairs of the unit and of finding herself beside the appellant in his bed the next morning with no memory of the intervening events. Once those matters are considered, it is difficult to see why the jury would have been left with reasonable doubt as to lack of consent. Defence counsel did not seek any direction on the issue of consent beyond those given by the trial judge, which was forensically sensible, since any emphasis on that issue would have undermined the only real issue raised on the defence case as to count 5; that no sexual intercourse took place and indeed there was no opportunity for it to occur as K did not stay overnight at the unit.