R v WBN

Case [2020] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBN [2020] QCA 203

PARTIES:

R
v
WBN
(appellant/applicant)

FILE NO/S:

CA No 98 of 2019
DC No 435 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 28 March 2019; Date of Sentence: 1 April 2019 (Coker DCJ)

DELIVERED ON:

16 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2019

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDERS:

1.   The appeal against conviction is allowed.

2.   The convictions on all counts are quashed.

3.   The appellant is to be retried on all counts.

4.   Counts 1-7 and counts 9 and 10 are to be tried separately from counts 8 and 11.

5.   Count 8 is to be tried separately from count 11.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTION – where the appellant was convicted by a jury after a nine day trial of 11 counts of sexual offences against seven complainant children – where the counts alleged various instances of sexual offending at the appellant’s family home located on a farm, against complainants aged between 10 and 17 – where three of the complainants had a family relationship to the appellant, being his daughter, niece and daughter of his de facto partner – where the counts variously involved indecent treatment of children under 16 (and who were either under care or a lineal descendant of the appellant), attempted indecent treatment, sexual assault and one count of digital rape – where the primary judge dismissed an application brought by the appellant for separate trials for each of the complainants made on the basis that what was alleged by one complainant was not cross admissible to prove the allegations by another complainant – where the appellant argued before the primary judge that the evidence did not fulfil the test enunciated in Pfennig v The Queen (1995) 182 CLR 461, in that no feature of the evidence reached the necessary probative value to render it admissible and that, whilst a striking similarity between the counts was not essential, it was a usual circumstance for evidence of one count to be cross admissible in respect of other counts – where the appellant also argued before the primary judge that, as in Phillips v The Queen (2006) 225 CLR 303, the similar fact evidence did not possess particular probative qualities – where the respondent submitted before the primary judge that the evidence of each complainant was cross admissible because of the probative value of that evidence in relation to the facts in issue, being whether the offending occurred and the objective improbability of similar lies by the complainants – whether separate trials of the separate counts of sexual offending should have been ordered on the basis that the evidence admissible on each count was not admissible on the other counts as similar…

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AGLC
R v WBN [2020] QCA 203
Case
[2020] QCA 203
Decision Date

CaseChat Overview and Summary

The case of R v WBN involved an appeal by the appellant against his convictions for multiple counts of sexual offences against children. The appellant, who was convicted by a jury following a lengthy trial, was found guilty on eleven counts of various sexual offences committed against seven complainants, aged between 10 and 17 years, at his family home on a farm. The court was required to determine whether separate trials should have been ordered for each of the complainants, whether the trial judge provided adequate directions regarding the use of similar fact evidence, and whether there was a misdirection or non-direction that led to a miscarriage of justice.

The court considered whether the evidence of each complainant was sufficiently similar to be admissible as cross evidence in other counts. The appellant argued that the evidence did not meet the probative value test established in Pfennig v The Queen and that the similar fact evidence did not possess particular probative qualities as discussed in Phillips v The Queen. The court examined whether the brazenness of the conduct in a home environment could be regarded as a distinctive or unifying feature of the offending. Furthermore, the court assessed whether the trial judge's directions on the use of similar fact evidence were adequate, particularly in light of the decision in R v Nibigira. Additionally, the court looked at whether the trial judge’s direction on the element of "intention" in relation to one of the counts was erroneous and whether this caused a miscarriage of justice.

The court concluded that the trial judge's directions regarding similar fact evidence were conventional and in accordance with the bench book, and did not constitute a misdirection. However, the court found that separate trials should have been ordered for certain counts due to the lack of cross-admissibility of evidence between some of the complainants. The court also found that the trial judge’s direction concerning the element of "intention" for one of the counts was erroneous and amounted to a miscarriage of justice. Consequently, the appeal against conviction was allowed, the convictions were quashed, and the appellant was ordered to be retried on all counts with certain counts to be tried separately.

The court ordered that counts 1-7 and counts 9 and 10 should be tried separately from counts 8 and 11, and that count 8 should be tried separately from count 11. This ruling ensures that the appellant will receive a fair trial with appropriate separation of evidence to prevent any prejudicial impact on his defence.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The convictions on all counts are quashed.

3. The appellant is to be retried on all counts.

4. Counts 1-7 and counts 9 and 10 are to be tried separately from counts 8 and 11.

5. Count 8 is to be tried separately from count 11.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The counts alleged various instances of sexual offending by the appellant at the appellant’s family home located on a farm, which also was one of the few houses in the area to have a pool. The complainants were aged between 10 and 16, except for AW who was aged 16 to 17. Three of the complainants had a family relationship to the appellant; J being the appellant’s daughter, KD his niece and NF the daughter of his de facto partner. Of the other complainants, GC, JC and AW were friends of the appellant’s daughter J, while KW became a friend of the appellant’s son, M, as a result of her mother working for the appellant and KW later married M.The evidence In addition to the complainants, evidence was given by preliminary complaint witnesses (J’s mother and friends, GC’s mother, NF’s mother and M) and two police officers. Evidence of what was relied on as admissions was also given at trial.Complainant KD (count 1)Count 1 KD gave evidence of an incident in 1993, when she was aged 15 and was babysitting the appellant’s children at the farmhouse. She was in a bed made up in an open alcove when the appellant and his wife returned home. She heard the appellant rummaging in the freezer and getting some ice. He came into the alcove and sat on her bed. He then lifted her T-shirt nightie and placed ice on her chest, rubbing it on her breasts and nipples saying, “You look hot” in a hushed voice. She froze and then rolled away from him and he left the room (count 1).[20][20]AB at 187-188. KD gave evidence of preliminary complaints[21] made a couple of days later to a friend, the mother of another friend and to her own mother, who all gave evidence generally consistent with KD.[22][21]AB at 189; 207-209.[22]AB at 220; 228; 232.Uncharged acts KD also gave evidence of an uncharged act that occurred earlier when she was 15 whilst on a family excursion to a family hut in a remote area at a cape where they would go fishing and crabbing. She said that, on that occasion, the appellant picked her up and was going to try to throw her into the water and that she wrapped her arms around his neck and held on quite tightly as she did not want to be thrown into the water fully clothed. The appellant grabbed her breast and squeezed for some seconds, when she released him, and he then threw her in the water.[23][23]AB at 182. She said she became aware from her sister that there were other victims and that she then began counselling before going to the police in Victoria, where she was living, to give a statement in 2016 and she gave a further statement in 2018 when requested to do so.[24]Complainant J (counts 2 and 7)[24]AB at 212; 218.Count 2 J gave evidence of an incident in March 2004 when she was 13 years old. Her evidence was that she returned home after attending a swimming carnival and mentioned to her parents about how sunburnt she was. The appellant told her to go and lie down in the air conditioning and he would put some aloe vera on her back. She went into her room and took off her shirt, leaving her bra on and lay face down on the bed. The appellant came in and sat on the side of the bed. He unclipped her bra strap, took her arms out of the straps and slid the bra to the floor. She did not say anything when he did that.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The trial judge returned to the relevance of the uncharged acts when summing up the rival contentions. In outlining the defence case, his Honour referred specifically and separately to the defence case in respect of the uncharged acts in relation to KD and how the reference to sexualised discussions should be considered by the jury in assessing her evidence.[261] Further, as to uncharged acts concerning GC, his Honour reminded the jury of the defence case that they did not support the charged acts concerning that complainant (counts 3, 4 and 6).[262] His Honour identified in relation to the complainant AW what the defence contended were inconsistencies in her evidence[263] and, likewise, that NF’s account of uncharged acts would not be accepted when considering her evidence.[264] And, in outlining the prosecution case, his Honour reminded the jury how the prosecution alleged the uncharged acts concerning JC went to that complainant’s credibility.[265][261]AB at 144.[262]AB at 147.[263]AB at 145.[264]AB at 145.[265]AB at 149.Consideration No redirection was sought by defence counsel in relation to the uncharged acts direction when seeking a redirection in respect of accident. It was abundantly clear from the prosecution opening and the addresses to the jury that the uncharged acts concerning each complainant were led as relevant to that complainant’s evidence concerning the charged acts committed against that particular complainant and to provide context for the charged offending against that complainant. The jury would not have been lead into thinking otherwise by the summing up. In particular, the reference in the summing up to “the complainants” and “the various complainants” was not likely to have been understood as meaning that the uncharged acts were to be considered as relevant beyond the evidence concerning the complainant to which it related. Rather, the trial judge’s reference to the uncharged acts as being led to show a sexual interest in the “various complainants” was likely to have been understood, consistently with the manner in which the trial was conducted and the examples identified in summing up the rival contentions, as referring to a distinct sexual interest in respect of the complainant it concerned and relevant to the jury’s assessment of that complainant and their assessment of whether it made it more likely that the offences charged concerning that complainant were committed. This complaint of miscarriage of justice cannot be sustained.Sentence appealThe sentences imposed and sentencing remarks The appellant was sentenced to an effective total sentence of six years’ imprisonment (with parole eligibility set at 28 March 2022). The sentences imposed were structured as follows:·A term of imprisonment of three and a half years in respect of count 8 with a cumulative term of two and a half years imprisonment for count 6.·Concurrently with those cumulative sentences, a term of imprisonment of one year for each of counts 1, 2 and 5, a term of nine months imprisonment for each of counts 3 and 4 and a term of nine months imprisonment for each of counts 7, 9, 10 and 11.