District Court at Brisbane – Date of Conviction: 25 September 2020 (Rafter SC DCJ)
DELIVERED ON:
Date of Orders: 9 September 2022 Date of Publication of Reasons: 20 September 2022
DELIVERED AT:
Brisbane
HEARING DATE:
21 July 2022
JUDGES:
Dalton JA and Davis and Kelly JJ
ORDERS:
Date of Orders: 9 September 2022
1. The appeal is allowed.
2. The convictions on all seven counts are set aside.
3. The appellant be retried.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant was convicted of maintaining an unlawful sexual relationship with a child under 16 and other sexual offences – where after the offending the appellant sent Snapchat messages to the complainant – where the Crown put the Snapchat messages as probative of the appellant’s relationship with the complainant – where the Snapchat messages were capable of demonstrating consciousness of guilt – where the trial judge directed consistently with the Crown’s use of the Snapchat messages – where the trial judge did not direct the jury against consciousness of guilt reasoning – whether the trial judge ought to have directed against consciousness of guilt reasoning – whether the trial judge ought to have directed the jury as to the prerequisites of consciousness of guilt reasoning – whether a miscarriage of justice occurred
[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.
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Details
AGLC
Content removed [2022] QCA 180
Case
[2022] QCA 180
Decision Date
CaseChat Overview and Summary
The appellant, WBS, appealed against his conviction for maintaining an unlawful sexual relationship with a child under 16 and other sexual offences. The case came before the court on the basis that the trial judge failed to adequately direct the jury on the issue of consciousness of guilt, particularly in relation to Snapchat messages sent by the appellant to the complainant. The appellant argued that the trial judge should have directed the jury against the use of consciousness of guilt reasoning and the prerequisites of such reasoning, leading to a miscarriage of justice.
The central legal issue was whether the trial judge erred in not directing the jury against the use of consciousness of guilt in interpreting the Snapchat messages. The court considered whether such a direction was necessary and whether the absence of it led to a miscarriage of justice. The court also examined whether the trial judge should have outlined the prerequisites of consciousness of guilt reasoning to the jury.
The court found that the trial judge did not err in not directing the jury against consciousness of guilt reasoning as there was no basis for such a direction in the evidence presented. The court held that the Snapchat messages did not inherently demonstrate consciousness of guilt, but rather were part of a broader pattern of behaviour that the Crown sought to use to prove the appellant's guilt. The court concluded that the failure to direct the jury on the prerequisites of consciousness of guilt did not amount to a miscarriage of justice, as the jury was sufficiently guided by the trial judge's overall directions.
The appeal was allowed, the convictions set aside, and the appellant ordered to be retried.
Orders
Orders of the court
Date of Orders: 9 September 2022
1. The appeal is allowed.
2. The convictions on all seven counts are set aside.
3. The appellant be retried.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Later, his Honour dealt with relationship evidence. After directing the jury’s attention to some particular evidence, his Honour continued:“The Crown also relies on the following acts: a higher degree of physical affection that the defendant demonstrated towards the complainant compared to the other children, that he had an erection when he was interacting with [the complainant], that he behaved in a way that hid his groin from [his wife] on two occasions when he was interacting with [the complainant], and the Snapchat messages that the defendant sent to [the complainant] wherein he stated that, ‘We both know that I have never harmed or done anything without your consent,’ and, ‘If you feel I have wronged you, please let me make it up to you.’The Crown relies on this other evidence to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it. The Crown argues that this evidence makes it more likely that the defendant committed the offences with which he is charged. You can only use this other evidence if you are satisfied beyond reasonable doubt that the defendant did act as that evidence suggests and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue. If you are not satisfied of those things beyond reasonable doubt, then that may affect your assessment of the complainant’s evidence about the acts which are the subject of the offences with which the defendant is charged.”[63] (emphasis added)[63]AB 53-54, summing-up page 11-12. His Honour did not direct the jury to the effect that any statement in the Snapchat messages could be found to be an admission. No criticism is made of the summing-up in this respect. His Honour reminded the jury of counsel’s addresses. In relation to the Crown prosecutor’s address, his Honour told the jury, relevantly here:“He then dealt with the Snapchat messages where there were suggestions made as to why [the complainant] might be lying. There was a suggestion that she made the allegations up to make her mother happy. He submitted that was ludicrous. As to the suggestion that the allegations were some form of revenge, Mr Corsbie pointed out that the defendant had already left the family home on a number of previous occasions. He also asked you to bear in mind that when [the complainant] spoke to the police, she said that she did not want to see the defendant going to jail.”[64] (emphasis added)And:“Mr Corsbie submitted that the defendant showed a higher degree of affection for [the complainant]. He referred to the evidence that the defendant had erections when interacting with her. He also referred to the evidence of the defendant’s sister,[65] where the defendant effectively accepted that he had an erection. He then dealt with the relationship and submitted that the defendant seemed to give [the complainant] preferential treatment. An example he referred to was the Snapchat messages and he asked you to bear in mind the defendant told the complainant to delete the messages.”[66] (emphasis added)[64]AB 61, summing-up page 19.[65]Her name is omitted.[66]AB 62, summing-up page 20.