R v RBJ - [2023] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v RBJ [2023] QCA 124

PARTIES:

R
v
RBJ
(appellant)

FILE NO/S:

CA No 50 of 2023
DC No 303 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 24 March 2023 (Jackson KC DCJ)

DELIVERED ON:

13 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2023

JUDGES:

Mullins P and Morrison and Flanagan JJA

ORDERS:

Orders made on 29 May 2023:

1.   Appeal allowed.

2.   Conviction set aside.

Order made on 13 June 2023:

1.   New trial ordered on count 1.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of rape (count 1) and was acquitted by the jury of two further counts of rape (counts 2 and 3) with all counts being domestic violence offences – where the complainant’s evidence included that after count 1 occurred, the complainant had showered and returned to the bedroom where counts 2 and 3 occurred – where the appellant submits there was no difference in the quality of the complainant’s evidence given about any of the counts on the issue of consent and the fact there was a short break in time between count 1 and counts 2 and 3 could not justify different verdicts – whether the verdict on count 1 is unreasonable because it is inconsistent with the verdicts of acquittal on counts 2 and 3

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, followed
R v KBB[2022] QCA 273, cited

COUNSEL:

S C Holt KC, with M W Harrison, for the appellant
E L Kelso for the respondent

SOLICITORS:

Quinn Law Group for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was found guilty after trial in the District Court before a jury of rape which was count 1 on the indictment. He was acquitted by the jury of two further counts of rape (counts 2 and 3). All counts were domestic violence offences.
The appellant appealed on two grounds:
the verdict on count 1 is unreasonable because it is inconsistent with the verdicts of acquittal on counts 2 and 3; and
a miscarriage of justice occurred because the learned trial judge failed to direct the jury on how they could use evidence of an exchange of text messages between the appellant and the complainant after the alleged offending:
a.no direction was given as to the use that could be made of the complainant’s assertions of fact in the text messages; and
b.no direction was given as to the prosecution’s attempt to use the appellant’s non-denial of accusations put in the text messages as admissions, confessions or consciousness of guilt.
The respondent’s written outline conceded that the appellant should succeed on ground 2 and that the appeal should be allowed and a retrial ordered. As a result, the Court convened on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v RBJ

Details

AGLC: R v RBJ [2023] QCA 124
Case: [2023] QCA 124
Decision Date: 13 June 2023

CaseChat Overview and Summary

In the case of R v RBJ, the appellant was convicted of one count of rape and acquitted on two other counts of rape, all of which involved domestic violence. The appellant appealed against his conviction on count 1 and the Crown cross-appealed against his acquittal on counts 2 and 3. The central issue was whether the verdict on count 1 was inconsistent with the acquittals on counts 2 and 3, given the complainant’s evidence about the events and the timing of the incidents. The appellant argued that the inconsistency in the jury’s verdicts rendered the conviction on count 1 unreasonable.

The court considered the quality and consistency of the complainant's evidence across all counts, focusing on the issue of consent and the temporal proximity between the incidents. It was noted that the complainant's testimony regarding her lack of consent was consistent across all counts. The court held that the short time lapse between count 1 and counts 2 and 3 did not justify different verdicts, as the evidence suggested a continuous pattern of non-consensual acts. The court found that the inconsistency in the verdicts undermined the reliability of the conviction on count 1, leading to the conclusion that the verdict was unreasonable.

The appeal was thus allowed, and the conviction on count 1 was set aside. A new trial was ordered on that count, as the inconsistency in the verdicts meant that the conviction could not stand. The court did not address the cross-appeal as the primary appeal's outcome necessitated a new trial on count 1.

Orders

Orders of the court

Orders made on 29 May 2023:

1. Appeal allowed.

2. Conviction set aside.

Order made on 13 June 2023:

1. New trial ordered on count 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution had particularised the three rapes as occurring on 10 October 2020, the rapes that were the subject of counts 1 and 3 were penile vaginal rapes and count 2 was a digital rape. The prosecution’s case relied on the jury’s acceptance of the complainant’s evidence as credible and reliable. The appellant’s contention at trial was that the appellant and the complainant had consensual sex that comprised the complainant’s performing oral sex on him, her touching him and one episode of penile vaginal sex and that the incidents that were the subject of counts 2 and 3 did not occur.Relevant evidence Apart from the investigating police officer, the only witness at the trial was the complainant. Her evidence included the following. The appellant and complainant had been in a relationship which ended on 29 September 2022. They remained in contact. On 10 October 2020, the complainant was residing with her mother and brother. At about 7.40 am, she was asleep in her bedroom when she woke up to see the appellant closing the bedroom door behind him, as he entered the room. He had two coffees in his hand. He sat on the bed, pulled the covers off her legs and started rubbing her leg. The complainant told him not to touch her. She told him she did not want to have sexual intercourse. They had further conversation in which the complainant repeated that she did not want to have sex with the appellant. The appellant told her “Look me in the eyes and tell me that you don’t want to f**k me”. When asked by the prosecutor what her response was, her first answer was that she said that he was not her boyfriend and that he responded he was, but her second answer was she did not recall exactly what she said. The complainant described that he climbed over her legs and lay so that he had one leg on each side of her legs and was on top of her. She told him to get off her. He took his shirt off. He groped and sucked her breasts. He took off her top. She was telling him to “stop”. He shoved her hands out of the way and held them together above the complainant’s head with one hand, while he removed her pants with the other hand. The complainant was then naked. She told the appellant that she did not want to have sex with him and that he should leave. He stood up off the bed and took his pants off, pulled the covers off the complainant which she had pulled up and manoeuvred himself so that he was between her legs. He put his penis inside her vagina (count 1). She cried and she told him to stop and to get off her. After a couple of minutes, he ejaculated on her chest. The complainant got up and went into the bathroom and cleaned herself up. (The complainant clarified in cross-examination that she had a shower at that time and the bathroom was outside the bedroom across the hall.) At no time did the complainant want to have sexual intercourse with the appellant on that day. When the complainant returned to the bedroom, the appellant was still naked and sitting on the bed. His penis was erect and he was on his phone. He said he wanted to have sex again. The complainant said “no” and that he should leave. She said “You can’t get rapey like that” and that she did not want to have sex with him. The appellant stood up and “180’d” the complainant, so she was in his position and he was in hers. She told him to get his hands off her and that she did not want to have sex. The appellant pushed her down on the bed, put both her hands in one of his hands and put them above her head and then inserted his finger in her vagina for a couple of seconds (count 2). He then inserted his penis in her vagina for five minutes and ejaculated inside her (count 3). There was no conversation. The complainant got up, picked up her clothes and said she was going to work. He asked whether she wanted him to leave and she “just sarcastically looked at him” and said “of course not”. She was crying at that point.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v RBJ [2023] QCA 124
PARTIES:	R v RBJ (appellant)
FILE NO/S:	CA No 50 of 2023 DC No 303 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport – Date of Conviction: 24 March 2023 (Jackson KC DCJ)
DELIVERED ON:	13 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	1 June 2023
JUDGES:	Mullins P and Morrison and Flanagan JJA
ORDERS:	Orders made on 29 May 2023: 1. Appeal allowed. 2. Conviction set aside. Order made on 13 June 2023: 1. New trial ordered on count 1.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was convicted of one count of rape (count 1) and was acquitted by the jury of two further counts of rape (counts 2 and 3) with all counts being domestic violence offences – where the complainant’s evidence included that after count 1 occurred, the complainant had showered and returned to the bedroom where counts 2 and 3 occurred – where the appellant submits there was no difference in the quality of the complainant’s evidence given about any of the counts on the issue of consent and the fact there was a short break in time between count 1 and counts 2 and 3 could not justify different verdicts – whether the verdict on count 1 is unreasonable because it is inconsistent with the verdicts of acquittal on counts 2 and 3 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, followed R v KBB[2022] QCA 273, cited
COUNSEL:	S C Holt KC, with M W Harrison, for the appellant E L Kelso for the respondent
SOLICITORS:	Quinn Law Group for the appellant Director of Public Prosecutions (Queensland) for the respondent