R v SBX - [2013] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v SBX [2013] QCA 45

PARTIES:

R
v
SBX
(applicant/appellant)

FILE NO/S:

CA No 73 of 2012
CA No 170 of 2012
DC No 553 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2012

JUDGES:

Margaret McMurdo P and Gotterson JA and McMeekin J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Gotterson JA concurring as to the orders made, McMeekin J dissenting in part

ORDERS:

Appeal against conviction allowed.1.

The verdicts of guilty on counts 3, 6, 17, 21 and 22 are set aside.2.

Verdicts of acquittal are entered on counts 3, 17, 21 and 22.3.

A retrial is ordered on count 6.4.

The appeal against conviction is otherwise dismissed.5.

The application for leave to appeal against sentence is granted and the appeal allowed.6.

The sentence imposed on count 1 is set aside and instead a sentence of 11 years imprisonment is substituted.7.

The sentence imposed on count 14 is set aside and instead a sentence of six years imprisonment is substituted.8.

The sentence imposed at first instance is otherwise confirmed.9.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where no evidence was presented on count 3 – where the primary judge wrongly left count 3 for the jury's consideration – where the jury convicted on count 3 – whether verdict unreasonable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the primary judge's summing up on count 6 did not reflect the relevant complainant's evidence – where the primary judge then conflated the relevant complainant's evidence on counts 6 and 7 – where no redirection was asked for by counsel for either party – where the jury convicted on count 6 – whether the misstatement of the evidence on count 6 deprived the appellant of his right to have the judge direct the jury as to the relevant law and evidence – whether miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where counts 21, 22 and 23 were part of one episode – where the jury convicted on counts 21 and 22 and acquitted on count 23 – where the relevant complainant made reference in cross-examination to count 23 but made no mention of counts 21 and 22 – whether a rational basis for distinguishing between the different verdicts exists – whether verdicts inconsistent

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where counts 8 and 20 involved separate occasions in which the appellant showed each complainant pornography on his computer – where…

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 SBX

Details

AGLC: R v SBX [2013] QCA 45
Case: [2013] QCA 45
Decision Date: 15 March 2013

CaseChat Overview and Summary

The appellant appealed against his convictions on various counts of sexual offences involving two complainants, H and M, who were 14 years old at the commencement of the offending. The appeal focused on the reasonableness of the verdicts and the adequacy of the trial judge's directions to the jury. The court had to determine whether the errors in the trial process amounted to a miscarriage of justice, particularly in light of the appellant's physical condition which made the alleged offences highly unlikely.

The primary legal issues included whether the jury's verdicts were unreasonable or insupportable in light of the evidence, particularly given the absence of evidence on count 3, the misdirection regarding count 6, and the inconsistent verdicts on related counts. Additionally, the court examined if the primary judge's directions on consent and the failure to provide a Longman direction amounted to a miscarriage of justice. The appeal also addressed whether the cumulative errors warranted setting aside the guilty verdicts and ordering a retrial.

The court found that there were significant errors in the trial process, including the absence of evidence on count 3, misdirection on count 6, and inconsistencies in the jury's verdicts. The court held that these errors compromised the jury's ability to deliver a fair verdict. The misdirection regarding count 6 and the failure to provide a Longman direction further contributed to the miscarriage of justice. Consequently, the verdicts on counts 3, 6, 17, 21, and 22 were set aside, and verdicts of acquittal were entered on those counts. A retrial was ordered for count 6. The court also addressed the sentence, reducing the terms of imprisonment for counts 1 and 14.

The court set aside the convictions on counts 3, 6, 17, 21, and 22, and ordered retrials and acquittals accordingly. The appeal against sentence was allowed, reducing the sentences for counts 1 and 14. The remaining convictions were confirmed, and the sentence for those counts was otherwise upheld.

Orders

Orders of the court

Appeal against conviction allowed.1.

The verdicts of guilty on counts 3, 6, 17, 21 and 22 are set aside.2.

Verdicts of acquittal are entered on counts 3, 17, 21 and 22.3.

A retrial is ordered on count 6.4.

The appeal against conviction is otherwise dismissed.5.

The application for leave to appeal against sentence is granted and the appeal allowed.6.

The sentence imposed on count 1 is set aside and instead a sentence of 11 years imprisonment is substituted.7.

The sentence imposed on count 14 is set aside and instead a sentence of six years imprisonment is substituted.8.

The sentence imposed at first instance is otherwise confirmed.9.

Background

Background to the litigation

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Evidence

Evidence Before The Court

H and M were medically examined. Their hymens were in a state consistent with evidence of sexual contact of the kind they each described, although there could be other explanations. M had genital herpes, the same virus which causes cold sores, at the time of her complaint and gave evidence that she had no sexual contact with anyone other than the appellant. Medical evidence established that genital herpes was usually but not always transmitted by sexual contact. There was no evidence as to whether or not the appellant had genital herpes or cold sores.The defence evidence The appellant formally admitted that he had taken photographs of M’s vagina and saved them on his computer. He gave evidence denying the commission of all the offences. He gave sex education advice to M but not H. His bad back which required surgery in mid-2008 rendered him incapable of committing the alleged offences. He explained that he took a photograph of M’s vagina with her permission to better identify on the internet the problem she was having with her genital area. He also called evidence contradicting aspects of the complainants' testimony. For present purposes, the relevant aspects are that the appellant's physiotherapist, James Eustace, said that the appellant’s back condition around the time counts 17 and 18 and 21 to 23 were alleged to have occurred, made it "very highly, highly unlikely"[16] that the appellant could have participated in sexual intercourse in the way H alleged. The appellant's orthopaedic surgeon, Dr Albietz, also gave evidence that the appellant would have probably been in extreme pain three weeks prior to his major back surgery on 30 July 2008. The activities alleged against him would be very unlikely for six weeks post-operatively and only a little less unlikely, seven and a half weeks post-operatively.[16]T 11-36. It should be remembered that each juror had a copy of the 23 charges and that count 13 was no longer before them, as they had been directed to return a not guilty verdict on it. His Honour's summing-up, which took a full day, included the following standard directions. The jury was to determine the facts based on the evidence. His Honour explained what constituted evidence and emphasised that the jury must have regard solely to the testimony, the exhibits and admissions in the case in their deliberations. They could convict the appellant only if the prosecution established his guilt of each particular offence beyond a reasonable doubt. That required them to be satisfied beyond reasonable doubt of every element of each particular offence. If left with a reasonable doubt about guilt in relation to any particular offence, their duty was to acquit the appellant. His Honour repeated that direction on a number of occasions. He instructed the jury that the prosecution case depended on the jury's acceptance of the evidence of the prosecution's principal witnesses (M and H) as true and accurate beyond reasonable doubt, despite the sworn evidence of the appellant and his witnesses.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v SBX [2013] QCA 45
PARTIES:	R v SBX (applicant/appellant)
FILE NO/S:	CA No 73 of 2012 CA No 170 of 2012 DC No 553 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2012
JUDGES:	Margaret McMurdo P and Gotterson JA and McMeekin J Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Gotterson JA concurring as to the orders made, McMeekin J dissenting in part
ORDERS:	Appeal against conviction allowed.1. The verdicts of guilty on counts 3, 6, 17, 21 and 22 are set aside.2. Verdicts of acquittal are entered on counts 3, 17, 21 and 22.3. A retrial is ordered on count 6.4. The appeal against conviction is otherwise dismissed.5. The application for leave to appeal against sentence is granted and the appeal allowed.6. The sentence imposed on count 1 is set aside and instead a sentence of 11 years imprisonment is substituted.7. The sentence imposed on count 14 is set aside and instead a sentence of six years imprisonment is substituted.8. The sentence imposed at first instance is otherwise confirmed.9.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where no evidence was presented on count 3 – where the primary judge wrongly left count 3 for the jury's consideration – where the jury convicted on count 3 – whether verdict unreasonable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the primary judge's summing up on count 6 did not reflect the relevant complainant's evidence – where the primary judge then conflated the relevant complainant's evidence on counts 6 and 7 – where no redirection was asked for by counsel for either party – where the jury convicted on count 6 – whether the misstatement of the evidence on count 6 deprived the appellant of his right to have the judge direct the jury as to the relevant law and evidence – whether miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where counts 21, 22 and 23 were part of one episode – where the jury convicted on counts 21 and 22 and acquitted on count 23 – where the relevant complainant made reference in cross-examination to count 23 but made no mention of counts 21 and 22 – whether a rational basis for distinguishing between the different verdicts exists – whether verdicts inconsistent CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where counts 8 and 20 involved separate occasions in which the appellant showed each complainant pornography on his computer – where…