R v WBC

Case [2015] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBC [2015] QCA 156

PARTIES:

R
v
WBC
(appellant)

FILE NO/S:

CA No 318 of 2014
DC No 944 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Brisbane – Unreported, 21 November 2014

DELIVERED ON:

25 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2015

JUDGES:

Gotterson and Morrison JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted on two counts of rape – where the complainant was 19 at the time of the trial – where the complainant was aged between six and eight at the time of the appellant’s offending – whether, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant on both counts

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL COUNTS – where the appellant’s counsel submitted that the jury were not clearly instructed about the criticisms of the complainant’s evidence in respect of each charge – whether the learned trial judge adequately directed the jury in accordance with the decision of R v Markuleski

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant’s counsel submitted that the learned trial judge should have specifically alerted the jury to the possibility of error in the complainant’s recollection – where the incidents were alleged to have occurred when the complainant was a child – where the learned trial judge delivered a Longman direction – whether a failure to direct the jury in accordance with the principles derived from Robinson v The Queen resulted in a miscarriage of justice

Criminal Code (Qld), s 632

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71, cited
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Aristidis [1999] 2 Qd R 629; [1998] QCA 422, cited
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, cited
R v MBX [2014] 1 Qd R 438; [2013] QCA 214, cited
R v Reynolds [2015] QCA 111, cited
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

B Walker SC, with T Ryan, for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for…

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Details
AGLC
R v WBC [2015] QCA 156
Case
[2015] QCA 156
Decision Date

CaseChat Overview and Summary

The appellant has appealed against his convictions for two counts of rape. The complainant, who was aged between six and eight at the time of the alleged offending, was 19 years old at the time of the trial. The appeal was based on three grounds, including that the verdicts were unreasonable, that the learned trial judge had failed to direct the jury adequately in accordance with the principles derived from R v Markuleski, and that the learned trial judge had failed to direct the jury in accordance with the principles derived from Robinson v The Queen, resulting in a miscarriage of justice.

The primary legal issue was whether the jury’s verdicts were unreasonable and whether the learned trial judge had properly directed the jury in accordance with relevant legal principles. The court had to independently assess the quality and sufficiency of the evidence to determine whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged. The court also had to consider whether the trial judge had adequately directed the jury on the separate consideration of each charge and on the need to consider the reliability and credibility of the complainant’s evidence in relation to each charge.

The court found that the jury was entitled to reach the conclusion it did on the evidence led in this case. The criticisms of the complainant’s evidence were not such as to require the jury to disbelieve him or to conclude that they could not rely upon it to establish the appellant’s guilt beyond reasonable doubt. The court also found that the trial judge had adequately directed the jury in accordance with the principles derived from R v Markuleski and Robinson v The Queen. The court held that the jury’s verdicts were not unreasonable and that there was no miscarriage of justice.

The appeal was dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant has appealed on the ground that the verdicts are unreasonable. His counsel also argued that the learned trial judge had failed to direct the jury adequately in accordance with the principles derived from R v Markuleski.[1] The third ground of appeal was that the learned trial judge had failed to direct the jury in accordance with the principles derived from Robinson v The Queen,[2] resulting in a miscarriage of justice.[1](2001) 52 NSWLR 82.[2](1999) 197 CLR 162.Summary of the evidence As the first ground of appeal asserts that the jury’s verdict was unreasonable, it is necessary that this court assess independently the quality and sufficiency of the evidence to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty of the offences with which he was charged.[3][3]SKA v The Queen (2011) 243 CLR 400, 408-409 at [21]-[22]. The appellant had two daughters by another relationship with whom the complainant grew up and whom he treated as his step-sisters. They were each older than he. They stayed with the complainant’s family two nights during the week and every second weekend and most of the school holidays. The appellant and the complainant’s mother also had a son who was seven years younger than the complainant. The complainant also knew the appellant’s father. He appears to have treated him as a grandfather and called him “Pop”. The appellant’s father lived in a caravan close to a workshop owned by the appellant where one of the incidents was found by the jury to have occurred. The second incident was said to have occurred in a car, a Mitsubishi Pajero, owned by the appellant.The incident in the workshop - Count 1 The appellant’s workshop had associated living quarters as well as a caravan adjacent to it where the appellant’s father lived. Photographs and diagrams were tendered at the trial to assist with the interpretation of the evidence from the witnesses about the workshop. Similarly, there were photographs and diagrams of the caravan. The complainant gave evidence that, when he was in grade 1, he would visit the workshop with the appellant, “Sometimes more than others; maybe three times a week …”.[4] His mother also gave evidence that it was mainly when he was in grade 1 that he would go to the workshop. The complainant gave evidence that his two step-sisters would be with him on those occasions and that it was usually his “Pop” who took them, but sometimes it was the appellant. The appellant’s father gave evidence in the defence case about driving the children to the workshop. The complainant also recalled that, on occasions when the appellant’s father did not drive them, but was otherwise at the workshop, he would come out and greet them. The appellant’s father himself gave evidence that he would not always do so. The complainant said that the noise of the car coming down the driveway would usually be able to be heard from the workshop area.[4]AR 54 l. 23.

Decision

Reasons for decision

In my view, the jury was entitled to reach the conclusion it did on the evidence led in this case. The criticisms of the complainant’s evidence were not such as to require the jury to disbelieve him or to conclude that they could not rely upon it to establish the appellant’s guilt beyond a reasonable doubt. Ground 2: Did the learned trial judge adequately direct the jury in accordance with the decision of R v Markuleski? The decision in R v Markuleski[15] is authority for the common direction that reminds the jury that separate charges should be considered separately and that they should evaluate the evidence relating to each particular charge to decide whether they are satisfied beyond a reasonable doubt that the prosecution has proved its essential elements. His Honour, the learned trial judge, gave such a direction in this case. It read as follows:[16]“There are two separate charges to be considered and determined by you. You must consider each charge separately, assessing the evidence relating to that particular charge, to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the guilt of the accused in respect of that charge. It’s as if we’re having two separate trials, but doing them at the same time. That’s how it is. You will therefore, of course, return a separate verdict for each charge. The evidence in relation to the two separate offences is, of course, different in the circumstances that have been identified, and so your verdicts need not be the same. But, of course, each charge depends entirely upon the credibility and reliability of the complainant as to what he said occurred in the shed and in the car.Your verdicts must be logical. There is no room for compromise verdicts. If you have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the charges, for whatever reason, that must be taken into account when you are assessing whether the complainant was truthful and reliable generally in his allegations against the accused.”[15]R v Markuleski (2001) 52 NSWLR 82.[16]AR 145 ll. 14-29. It was submitted for the appellant that, as defence counsel at the trial submitted, the jury may have had a doubt about the complainant’s reliability and credibility on Count 1 because of the state of the evidence about the whereabouts of his grandfather at the time. That doubt would impact on their view of the complainant’s reliability and credibility in respect of Count 2. Defence counsel also submitted that the complainant’s version of Count 2 was arguably less plausible than his version of Count 1 because of the allegation that the sexual misconduct occurred beside a road in daylight with other cars going past. Mr Walker SC for the appellant, who was not the trial counsel, argued that the direction given was inadequate because of his Honour’s failure to direct the jury to consider the reason why they might have a reasonable doubt about a part of the complainant’s evidence and whether it affected the way they assessed the rest of his evidence. He submitted that a direction along the lines of the final three paragraphs in the Queensland Supreme and District Courts Benchbook[17] should have been added. That passage reads as follows:“Your general assessment of the complainant as a witness will be relevant to all counts, but you will have to consider her evidence in respect of each count when considering that count.Now, it may occur in respect of one of the counts, that for some reason you are not sufficiently confident of her evidence to convict in respect of that count. A situation may arise where, in relation to a particular count, you get to the point where, although you're inclined to think she’s probably right, you have some reasonable doubt about an element or elements of that particular offence.Now, if that occurs, of course, you find the defendant not guilty in relation to that count. That does not necessarily mean you cannot convict of any other count. You have to consider why you have some reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence, that is whether your doubt about that aspect of her evidence causes you also to have a reasonable doubt about the part of her evidence relevant to any other count.”[17]Queensland Supreme and District Courts Benchbook at 34.2.

Ratio Decidendi

Legal Principle Established

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