R v PBQ

Case [2025] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

R v PBQ [2025] QCA 101

PARTIES:

R
v
PBQ
(appellant)

FILE NO/S:

CA No 120 of 2024
DC No 604 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 17 April 2024 (McGinness DCJ)

DELIVERED ON:

13 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2025

JUDGES:

Mullins P and Flanagan and Brown JJA

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted after a trial of one count of indecent treatment of a child, under 16, under care – where the appellant contends that there were inconsistencies in the complainant’s evidence and inconsistencies between the complainant’s evidence and the evidence of preliminary complaint, as provided by the complainant’s mother and grandmother – whether the verdict was unreasonable or insupportable having regard to the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of one count of indecent treatment of a child, under 16, under care – where the appellant contends that the trial judge’s directions regarding the elements of ‘indecency’ and ‘under care’ were respectively insufficient and deficient – where the appellant contends that the directions regarding ‘motive to lie’ and ‘inconsistency’ provided by the trial judge were inadequate – where the appellant contends that the trial judge ought to have provided a Jones v Dunkel direction concerning the Crown’s failure to call witnesses and a direction concerning the complainant’s delay (of approximately two years) in reporting the matter – whether the alleged inadequate directions provided by the trial judge, or the non-directions, resulted in a miscarriage of justice

Evidence Act 1977 (Qld), s 132BA

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, cited
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, distinguished
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, distinguished
R v Carlton[2018] QCA 294, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, cited
R v ZT (2025) 99 ALJR 676; [2025] HCA 9, cited

COUNSEL:

S A Levitt (sol) for the appellant
M J Wilson for the respondent

SOLICITORS:

Levitt Robinson Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Brown JA.

  2. FLANAGAN JA:  I agree with Brown JA.

  3. BROWN JA:  The appellant was convicted of one count of indecent treatment of a child, under 16, under care, following a…

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Details
AGLC
R v PBQ [2025] QCA 101
Case
[2025] QCA 101
Decision Date

CaseChat Overview and Summary

The appeal in R v PBQ concerns the conviction of the appellant for one count of indecent treatment of a child under 16 under care. The complainant, a child, testified that the appellant, her mother's partner, had inappropriately touched her while babysitting. The complainant's mother and grandmother provided evidence of preliminary complaint. The appellant's appeal hinges on the contention that the verdict was unreasonable or insupportable given the evidence, and that there were deficiencies in the trial judge's directions to the jury.

The primary legal issues for the court to decide were whether the verdict was unreasonable or insupportable in light of the evidence and whether there were significant errors in the trial judge's directions to the jury that amounted to a miscarriage of justice. The appellant argued that the complainant's evidence was inconsistent and conflicted with the preliminary complaint evidence. The appellant also claimed that the trial judge's directions concerning the elements of 'indecency' and 'under care' were insufficient, and that there were deficiencies in the directions regarding 'motive to lie' and 'inconsistency'. Additionally, the appellant asserted that the trial judge should have provided a Jones v Dunkel direction concerning the Crown's failure to call witnesses and a direction about the complainant's delay in reporting the incident.

The court assessed the evidence and concluded that the jury's verdict was not unreasonable or insupportable. The court found that the complainant's evidence was consistent and corroborated by the preliminary complaint evidence. The court also held that the trial judge's directions to the jury were adequate and correctly addressed the matters in issue. The court observed that no redirections were sought by counsel, indicating that the trial judge's summing up was sufficient. Therefore, the court found that no miscarriage of justice occurred.

The appeal was dismissed, and the original conviction was upheld. The court ordered that the appeal be dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is appropriate to commence with the ground that the verdict is unreasonable. It is therefore necessary for this Court to carry out its own independent assessment of the evidence.The evidence at trial The principal evidence at trial was given by the complainant. Evidence of preliminary complaint was given by the complainant’s mother and her grandmother.Complainant’s evidence The complainant’s evidence was the subject of a record of interview with police and subsequently pre-recorded evidence. It is uncontentious that the appellant was, at the relevant time, the partner of the complainant’s mother. On the day in question, the complainant said that the appellant was babysitting her and her mother was at work. The complainant said that the appellant called out to her and asked if he could have a cuddle and said that he would buy her a new phone if he could give her a cuddle. According to the complainant, the complainant said no. A couple of hours later he asked again whether he could have a cuddle. She said that she went into her mother’s bedroom where he was lying on the bed and gave him a cuddle and then when she was on the bed he started “touching my private part”.[1] She stated it continued for around one to two minutes. She then got up and left and played with her Xbox.[1]AB Vol 2 187/24. The complainant stated that at the time he had silky pyjama shorts on. They had a superman print on them. At that stage the complainant said that she used to call the appellant dad and treated him like he was her dad. In describing the incident, the complainant said that when the appellant went to cuddle her, he switched positions to the side. He put one hand under her head and the other down onto her stomach and then he moved it down. She stated his touch was originally really soft and then it got a little bit aggressive. He began rubbing her private part a little harder and moving his hand up and down. She had “bummers” on, which are like bike shorts. His hand was on the outside of the “bummers”. She stated that he used two fingers and was going up and down. She identified her private part to be her vagina and in particular that the area where he was rubbing was her clitoris, which she described as “it’s like in the middle”.[2] She said she only found out a couple of years ago what he was actually doing but she did not have a clue at the time.[2]AB Vol 2 167/19. When asked by the police officer whether there was anything else she could feel, she stated “I felt his fat stomach” and then “I couldn’t feel anything else. I’m lying, I c - , did feel like something else. … It was his private part”.[3] She stated it was just below my butt and she could feel it sticking out. When asked what it felt like she said “[i]t felt like a bone” and said that he had a “boner”.[4] The complainant said she knew what a boner was because she had had a sex talk with her mum and aunties and that they had also talked about it at school because “you need to learn that stuff”.[5] The complainant identified that the appellant’s private part that she was referring to was his penis.[3]AB Vol 2 179/14-23.[4]AB Vol 2 180/21.[5]AB Vol 2 180/47-8.

Decision

Reasons for decision

It is similarly relevant in the present case, that directions were discussed with counsel by the trial judge before summing up and no redirections were sought after the summing up. While nothing turns on that in the present case, as for the above reasons, the trial judge’s directions were not lacking or inadequate, the fact that no miscarriage of justice occurred is supported by the fact that no direction or redirection was sought by counsel as to the directions. That is consistent with the fact the trial judge’s summing up was directed at the matters in issue between the parties and canvassed the matters relevant to the jury carrying out their task.Conclusion The appellant has not established that the verdict was unreasonable or could not be supported by the evidence. Nor has the appellant established that the trial judge failed to adequately direct the jury. The appeal must fail. The appellant has not demonstrated any miscarriage of justice.Proposed order The order of the court should be that:1.The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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