R v Pbo

Case [2024] QCA 238

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBO [2024] QCA 238

PARTIES:

R
v
PBO
(appellant)

FILE NO/S:

CA No 61 of 2024
DC No 487 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Beenleigh – Date of Conviction: 8 March 2024 (Jackson KC DCJ)

DELIVERED ON:

26 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2024

JUDGES:

Bowskill CJ, Boddice JA and Doyle AJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – where the appellant was convicted of maintaining a sexual relationship with a  child (count 1) and rape (count 2), and acquitted of two charges of assault occasioning bodily harm, one basic (count 3) and one aggravated (count 4) – where the prosecution case included video recordings of two police interviews of the complainant conducted in March 2020 and June 2022, and prerecorded evidence recorded in February 2024 – where after a short trial and following addresses and summing up, the trial judge acceded to a jury request that the recording of the first interview be played again and gave a direction – whether a miscarriage of justice occurred by replaying the first interview without replaying the second interview and prerecorded evidence – whether the trial judge erred in not reminding the jury of salient features of the complainant’s second interview and prerecorded evidence – whether the trial judge erred in failing to give the jury a significant forensic disadvantage direction relating to availability of witnesses and the inability to test evidence

Evidence Act 1977 (Qld), s 132BA

Bulejcik v The Queen (1996) 185 CLR 375; [1996] HCA 50, cited
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, considered
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140, considered
R v Ali[2015] QCA 191, cited
R v BEA[2023] QCA 78, applied
R v CCW[2022] QCA 183, considered
R v DBZ[2022] QCA 200, cited
R v Enright[2023] QCA 89, cited
R v H [1999] 2 Qd R 283; [1998] QCA 348, cited
R v Halliday[2018] QCA 279, cited
R v LAK[2018] QCA 30, considered
R v MCC[2014] QCA 253, cited
R v SDL[2022] QCA 207, distinguished

COUNSEL:

C R Smith for the appellant
D Nardone for the respondent

SOLICITORS:

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

  1. BOWSKILL CJ:  I have had the advantage of reading Doyle AJA’s reasons for judgment in draft.  I agree, for the reasons given by Doyle AJA, that each of the grounds fails and so the appeal should be dismissed.  Given the differences of view expressed, I add the following brief observations, in support of the conclusion reached in relation to ground 2.

  2. The rationale for replaying recorded evidence of important witnesses in a criminal case only…

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Details
AGLC
R v Pbo [2024] QCA 238
Case
[2024] QCA 238
Decision Date

CaseChat Overview and Summary

The case of R v Pbo involved an appeal against a conviction for maintaining a sexual relationship with a child and rape, while being acquitted on two charges of assault occasioning bodily harm. The appellant contended that a miscarriage of justice occurred due to the trial judge's decision to replay only one of the complainant's police interviews, without replaying the second interview and the prerecorded evidence. The appellant also argued that the trial judge failed to remind the jury of salient features of the complainant's second interview and the prerecorded evidence and did not provide a significant forensic disadvantage direction regarding the availability of witnesses and the inability to test evidence.

The central legal issues were whether the trial judge's decision to replay only one of the police interviews without the others constituted a miscarriage of justice and whether the judge erred in not reminding the jury of the complainant's second interview and prerecorded evidence and in not providing a significant forensic disadvantage direction.

The court considered that there was no error in the trial judge acceding to the jury's request to replay only one of the police interviews, given the context of the trial and the fact that the jury had already been provided with a comprehensive summary of all the evidence. The court also found that the trial judge's instruction to the jury to avoid giving undue weight to the replayed evidence was sufficient, and there was no miscarriage of justice. Additionally, the court held that the trial judge did not err in not reminding the jury of the complainant's second interview and prerecorded evidence, as the jury had already been reminded of all the evidence through the comprehensive summing up. The court further determined that no significant forensic disadvantage direction was necessary.

Accordingly, the appeal was dismissed. The court ordered that the appeal be dismissed, and no further orders were made.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

For the reasons which follow, I would dismiss the appeal.Background Before addressing the substance of the grounds of appeal, it is appropriate to summarise the charges faced by the appellant, and the trial context in which the grounds of appeal fall to be considered.The allegations The complainant was born in April 2007. The offending against her was alleged to have occurred between 31 December 2013 and 1 September 2014, when she was six or seven years of age. Count 1 involved an allegation that the appellant maintained a sexual relationship with the complainant, a child under 16 years of age. The unlawful sexual acts by the appellant were alleged to include touching his penis in front of the complainant, touching the complainant’s vaginal area with his hand, penetrating the complainant’s vagina with his hand or finger(s), and penetrating the complainant’s vagina with his penis. Count 2 involved an allegation that appellant raped the complainant. It was particularised as involving the appellant penetrating the complainant’s vagina with his finger(s), but by reference to the occasion the complainant described as involving the appellant trying to penetrate her vagina with his fist. Count 3 involved an allegation that the appellant struck the complainant with his hand, causing bruising and a cut on her lip. Count 4 involved an allegation that the appellant threw an object which struck the complainant’s arm, causing a cut on her arm.The prosecution case The prosecution case focussed upon the evidence of the complainant. However, it also included evidence from three witnesses: the complainant’s grandmother, the investigating police officer, and the complainant’s mother. The complainant first spoke to police on 31 March 2020, when she was 12 years of age. She spoke with police again on 22 June 2022, when she was 15 years of the age. The prosecution case included video recordings of both of these police interviews,[7] as well as the complainant’s pre-recorded evidence-in-chief and cross-examination.[8][7]Received as statements pursuant to s 93A of the Evidence Act 1977 (Qld).[8]Pursuant to s 21AK of the Evidence Act. By way of summary of the complainant’s first police interview, she made allegations that ‘when I was younger … [a] guy used to hit me and touch me’. She identified this person as her mother’s boyfriend, the appellant. She said that ‘he used to throw things at me … [a]nd he used to touch me’. She thought it happened about four years ago, when she was seven, but that she ‘didn’t tell mum that he touched me or like tried to hurt me until, last night’. The complainant then summarised the house in which they were living at the time, including by drawing a diagram of the house. She described who was living in the house with her, namely her mother, the appellant, his teenage sons (J and B), H (J’s girlfriend), C (the appellant’s friend) and C’s two children. When asked whether she thought anyone had seen the appellant physically assault her, the complainant said ‘I think J did’ because ‘he would just always be around’. She added that ‘someone must’ve saw because it, it happened a lot’ but that ‘if people did see, they never did anything’. She said that her mum ‘never knew’, explaining that she was always ‘locked in a room … having alone time, I think, or something’. She could hear her mum ‘crying and stuff like that’. The complainant also described B and H as generally staying in their rooms, and that C generally stayed downstairs. Indeed, at one point, she seemed unclear about whether C was still living with them at the relevant time.

Evidence

Evidence Before The Court

As this Court observed in R v Enright [2023] QCA 89 at [74]-[75]:“There is no doubt that evidence in an audio-visual form has a force, particularly when compared with evidence only available in documentary or transcript form. However, what may be necessary to provide an appropriate balance in the replaying of that type of evidence, must be considered in the context of the trial as a whole, including its length and the other evidence.For example, the risk of disproportionate weight being given to such replayed evidence is heightened in circumstances where an accused has given evidence at trial, or where a complainant has given evidence in cross-examination which places the content of that audio-visual evidence as requiring correction. Those were the circumstances in R v SDL.”[4][4]R v SDL [2022] QCA 207. This was a very short trial; the appellant gave no evidence; and the cross-examination of the complainant was brief (about 15 minutes), focussing on the implausibility, or unreliability, of the complainant’s allegations of physical assaults; the change in what the complainant said to police in 2022, compared with 2020; a suggestion that the complainant’s memory was somewhat faulty; and putting to her that none of the things she had described to police had happened. The closing submissions were also succinct. The summing up was comprehensive and detailed, and included a fairly extensive summary of all the evidence, which is not an essential feature of a summing up. Quite often, particularly in a short trial, a trial judge might say something like “I am not going to remind you of all the evidence, you have just heard it and it is fresh in your minds…”. But the fact that a summary was given means that the jury was reminded, by the judge, of what the complainant had said in her evidence in chief (across the two police interviews) and in cross-examination, as well as what the complainant’s mother and grandmother had said in their evidence. The judge also, as is required, summarised the competing arguments of the prosecution and defence in a fair and accurate way. The trial judge clearly highlighted for the jury that the issue for them was whether they were satisfied beyond reasonable doubt that what the complainant described had in fact happened; emphasising in that context that the defence case was, in respect of each count, “this did not happen”. That was also set out in a written document given to the jury in the course of the summing up. About an hour after the summing up had finished (at the end of the second day of the trial), the jury asked to review the video recordings of both the complainant’s interviews with police. First thing the next day (day three), they modified their request to only the first one. For the reasons addressed by Doyle AJA at paragraph [87] below, there was no error in the trial judge acceding to that request in the circumstances of this case. After the interview was replayed for the jury, the trial judge instructed the jury that, “just because you watch the same evidence again, that doesn’t make it more important than it was”. That was, essentially, a plain English way of saying “avoid giving undue weight to evidence that is recorded and therefore available for you to hear a second time”.

Decision

Reasons for decision

Ground 3 has not been made out.Conclusion For the reasons set out, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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