R v Pbi

Case [2022] QCA 170

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBI [2022] QCA 170

PARTIES:

R
v
PBI
(appellant)

FILE NO/S:

CA No 296 of 2021
DC No 8 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Charters Towers – Date of Conviction: 28 October 2021 (Coker DCJ)

DELIVERED ON:

6 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2022

JUDGES:

Mullins P and North and Henry JJ

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was tried on one count of unlawful assault, two counts of unlawful and indecent dealing, and one count of attempted unlawful and indecently dealing – where all accounts related to a girl under 16, under the appellant’s care – where the appellant was convicted of two counts but acquitted on the other two – where the appellant appeals against the conviction on the ground that the acquittal on counts 3 and 4 is inconsistent with the conviction on count 1 and 2 to the extent that the verdicts cannot reasonably stand together

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, cited
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited
R v Conn; R v Conn; Ex parte Attorney-General (Qld)[2017] QCA 220, cited
R v Fanning[2017] QCA 244, cited

COUNSEL:

J C Treviño QC for the appellant
A J Walklate for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with North J.

    Introduction

  2. NORTH J:  The appellant was tried before a jury in the District Court at Charters Towers on a four count indictment.  The jury returned verdicts of guilty on Counts 1 and 2 and not guilty on Counts 3 and 4.

  3. The events charged were alleged to have occurred in a single episode on 21 August 2020.  Count 1 alleged that the appellant unlawfully assaulted the complainant and did her bodily harm and Count 2 alleged that the appellant unlawfully and indecently dealt with the complainant.  Count 3 alleged that the appellant unlawfully and indecently dealt with the complainant and Count 4 alleged that the appellant attempted to unlawfully and indecently deal with the complainant.  In each of counts 2, 3 and 4 it was alleged that the complainant was a child under 16 years and was relevantly under the appellant’s care.

  4. The sole ground of appeal under the Amended Notice of Appeal filed by leave is that:

    “The verdicts of guilty on counts 1 and 2 were unreasonable in circumstances where they are inconsistent with the verdicts of acquittal on counts 3 and 4.”

    The principles of law engaged by the ground of appeal

  5. The principles and considerations to be evaluated when it is submitted that a jury verdict by reason of its inconsistency is unreasonable were considered by the High Court in MacKenzie…

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Details
AGLC
R v Pbi [2022] QCA 170
Case
[2022] QCA 170
Decision Date

CaseChat Overview and Summary

In the case of R v Pbi, the appellant was convicted of two counts of indecent treatment of a child under 16, under care, but acquitted on one count of assault occasioning bodily harm and one count of attempted indecent treatment of a child under 16, under care. The appellant appealed against the conviction on the basis that the acquittal on counts 3 and 4 is inconsistent with the conviction on counts 1 and 2 to the extent that the verdicts cannot reasonably stand together. The appeal was heard by the court which was required to consider whether the acquittals were inconsistent with the convictions.

The legal issues before the court were whether the verdicts were actually irrational or repugnant to each other and not merely that they might be. The court considered the observations of Sofronoff P where his Honour observed that it is not for the Crown to justify or rationalise verdicts of conviction and acquittal. The court noted that differing verdicts are inherent in trials of multiple counts, particularly when a jury is warned against propensity reasoning. The court also noted that it is for the appellant to demonstrate a miscarriage of justice by showing, by reference to the facts, the evidence, the witnesses and the conduct of the trial, that the differing verdicts are actually irrational or repugnant to each other and not merely that they might be.

The court found that the appellant had not demonstrated a miscarriage of justice. The court found that the verdicts were not actually irrational or repugnant to each other. The court found that the appellant had not shown that the acquittals were inconsistent with the convictions to the extent that the verdicts cannot reasonably stand together. The court dismissed the appeal against conviction.

The court dismissed the appeal against conviction and affirmed the conviction of the appellant on two counts of indecent treatment of a child under 16, under care.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, of relevance are the observations of Sofronoff P where his Honour observed:“It must constantly be borne in mind, when considering such a ground of appeal, that it is not for the Crown to justify or to rationalise verdicts of conviction and acquittal. Differing verdicts are inherent in trials of multiple counts, particularly when a jury is warned against propensity reasoning. It is for an appellant to demonstrate a miscarriage of justice by showing, by reference to the facts, the evidence, the witnesses and the conduct of the trial, that the differing verdicts are actually irrational or repugnant to each other and not merely that they might be.”[6](Footnotes omitted)[6]R v Conn; R v Conn; Ex parte Attorney-General (Qld) [2017] QCA 220 at [71].The prosecution case and the evidence at the trial The particulars of the acts alleged in the respective counts were provided to the jury:“Count 1: Assault occasioning bodily harmThe defendant placed hand/s around the complainant’s throat and applied pressure. The complainant sustained the following injuries that interfered with her comfort:a. Linear abrasions under both ears consistent with scratch marks; and/orb. Linear abrasions on the right neck consistent with scratch marks; and/orc. Petechial lesions (round spots that appear on the skin resulting from bleeding) consistent with blunt force trauma to the right neck.Count 2: Indecent treatment of a child under 16, under careThe defendant used his penis to rub the complainant’s bottom, on the outside of her clothing.Count 3: Indecent treatment of a child under 16, under careThe defendant used his thumb to touch the complainant’s vagina, skin on skin.Count 4: Attempted indecent treatment of a child under 16, under careThe defendant attempted to use his hand/s to touch the complainant’s breast/s.”[7][7]See AB2 210. The complainant was the 14 year old daughter of the appellant’s former partner. The appellant had been in a relationship with the complainant’s mother when the complainant was a young child and they had remained in contact. At the time of the alleged offences the appellant was 45 years old and living on a rural property on the outskirts of Charters Towers. An arrangement had been made for the complainant to stay with the appellant at his property for the weekend.[8] The appellant lived in a caravan on the property. After dinner, the complainant and the appellant retired to the caravan to sleep. He laid on one bed and she on another. He asked her to cuddle him but she refused then he sat at the end of her bed and spoke to her about touching herself. He went back to his bed and said “if I wanna fuck then we can fuck”.[9] The following day the complainant and the appellant argued about her wish to return home and he confiscated her phone and there was a physical altercation between them. In the evening she changed her pyjama top and pants and went to bed in the caravan. Later that night the appellant woke the complainant up and he told her he wanted to lie with her and cuddle and she said no and rolled over and went back to sleep.[8]The aforementioned and the following summary draws upon the submissions filed on behalf of the appellant.[9]AB2 214, l 36 (Emphasis added).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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