R v Wbu

Case [2022] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBU [2022] QCA 236

PARTIES:

R
v
WBU
(appellant/applicant)

FILE NO/S:

CA No 50 of 2022
CA No 107 of 2022
DC No 27 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 25 February 2022; Date of Sentence: 20 May 2022 (Long SC DCJ)

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2022

JUDGES:

McMurdo and Flanagan JJA and Boddice J

ORDERS:

1.   The appeal in CA No 50 of 2022 be allowed.

2.   The convictions on Counts 1, 2, 3 and 8 be set aside.

3.   Judgment and verdicts of acquittal be entered on each of those counts.

4.   The application for leave to appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where a jury, by majority, found the appellant guilty of one count of maintaining a sexual relationship with a child (Count 1) and three counts of indecent dealing of a child under care (Counts 2, 3 and 8) – where the jury found the appellant not guilty, by majority, of one count of indecent dealing of a child under care (Count 9) and one count of rape (Count 7) – where the jury found the defendant not guilty, unanimously, of an alternative to the count of rape being unlawful carnal knowledge – where the jury was unable to reach verdicts, either unanimously or by majority, in respect of two further counts of rape (Counts 5 and 6) or alternative counts of unlawful carnal knowledge – where the jury was directed to return a verdict of not guilty of a count of indecent dealing of a child under care (Count 4) – where all offences involved the daughter of the appellant’s former partner – where the offending occurred while the complainant was in year seven at school – where the offending stopped when the complainant was in year eight – where the first incident occurred after Christmas 2017 – where the complainant was wrestling with the appellant – where the appellant touched the complainant on her chest, with two hands, on top of her clothes (Count 2) – where, after the first incident, the appellant came into the complainant’s room while the complainant was in bed and put his hand under the complainant’s underwear and indecently touched the complainant for approximately 20 seconds (Count 3) – where the appellant asked the complainant whether she knew what masturbating was and if the complainant wanted to see the appellant’s penis – where the appellant exposed his erect penis to the complainant (Count 4) – where, in 2018, the appellant came into the complainant’s room and forced his penis into the complainant’s “middle hole” (Count 5) – where, in the middle of 2018, the appellant inserted his penis into the complainant’s “middle hole” (Count 6) – where, on…

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R v Wbu [2022] QCA 236
Case
[2022] QCA 236
Decision Date

CaseChat Overview and Summary

In the case of R v Wbu, the appellant was convicted by a jury on one count of maintaining a sexual relationship with a child and three counts of indecent dealing with a child under care, but was acquitted on one count of indecent dealing with a child under care and one count of rape. The appellant appealed against his conviction and sentence, arguing that the verdict was unreasonable or insupportable having regard to the evidence. The court found that the jury’s acquittal on one count of rape was only consistent with a conclusion that the jury rejected the complainant’s credibility, and that the verdict in respect of Counts 1, 2, 3, and 8 was unreasonable. The court allowed the appeal and set aside the convictions on those counts, entering judgments and verdicts of acquittal on each of them. The application for leave to appeal against sentence was dismissed.

The legal issues before the court were whether the acquittal in respect of Count 7 was only consistent with a conclusion that the jury rejected the complainant’s credibility, and whether the verdict in respect of Counts 1, 2, 3, and 8 was unreasonable. The court considered the evidence and found that the acquittal on Count 7 was only explicable on the basis that the jury did not believe the complainant’s evidence as to the occurrence of that event. The court found that the jury’s rejection of the complainant’s credibility in respect of Count 7 had a bearing on the jury’s reasoning in respect of Counts 1, 2, 3, and 8, such that the verdicts of guilty on those counts were unreasonable. The court found that the appellant’s acquittal on Count 7 was not consistent with the jury having a doubt about anal penetration, and that the complainant’s account gave a reasonable basis for penetration itself to be an issue. The court concluded that the jury’s acquittal on Count 7 must have involved an actual rejection of the complainant’s evidence, and that the verdicts of guilty on Counts 1, 2, 3, and 8 were unreasonable for reasons apart from whether it was open to the jury to be satisfied of the appellant’s guilt to the requisite standard.

Orders

Orders of the court

1. The appeal in CA No 50 of 2022 be allowed.

2. The convictions on Counts 1, 2, 3 and 8 be set aside.

3. Judgment and verdicts of acquittal be entered on each of those counts.

4. The application for leave to appeal against sentence be dismissed.

Background

Background to the litigation

Should leave be granted to appeal sentence, the appellant contends the sentencing judge erroneously sentenced him on findings inconsistent with the jury’s verdicts.Background All of the offences involved the one female complainant. She was the daughter of the appellant’s then partner. The offences were all said to have been committed when the appellant was 46 – 47 years of age. The complainant was 12 years of age.Counts Count 1 was committed between 26 December 2017 and 1 December 2018. It was particularised that during that period, the appellant performed the following acts on the complainant regularly, on one or more occasions:·Rubbing/grabbing her bottom and chest;·Exposing his penis to her;·Digital penetration of her vagina;·Penile/vaginal sexual intercourse; and·Penile/anal sexual intercourse. Count 2 was committed between 26 December 2017 and 1 December 2018. That count was particularised as the appellant having squeezed the complainant’s bottom and chest with his hand, over the top of her clothing. It occurred on a couch, after they had been play wrestling in the lounge. Count 3 was committed between 31 December 2017 and 1 December 2018. That count was particularised as the appellant rubbing the complainant’s clitoris at night, in her bedroom, whilst she was wearing shorts with pineapples on them. Count 8 was committed between 31 December 2017 and 1 December 2018. That count was particularised as the appellant rubbing aloe vera on the complainant’s back, whilst she was lying on her bed, before massaging the complainant’s bottom. Count 4 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown had particularised that count as the appellant exposing his erect penis to the complainant during the day when the complainant was in her bedroom after they had watched a movie in the loungeroom. Count 5 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that count as the appellant having penile/vaginal intercourse with the complainant, in her bed, without her consent, on what was described by the complainant as the “first time”. Count 6 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that count as the appellant having penile/vaginal intercourse with the complainant, in her bed, without her consent, at night, on an occasion where the complainant had an exam the next day. Count 7 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that Count as the appellant having penile/anal intercourse with the complainant, in the shower, without her consent, after the appellant walked into the bathroom wearing only a towel. Count 9 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that count as the appellant putting his thumb between the complainant’s bottom cheeks when they were swimming together.Evidence

Evidence

Evidence Before The Court

Count 9 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that count as the appellant putting his thumb between the complainant’s bottom cheeks when they were swimming together.Evidence The complainant was interviewed by police on 8 May 2020. That interview was recorded and played to the jury pursuant to s 93A of the Evidence Act 1977 (Qld). The complainant gave evidence on 27 April 2021. That evidence was recorded and played to the jury pursuant to s 21AK of the Act. The complainant gave evidence that her mother and father divorced when she was about seven years of age. Soon thereafter, her mother met with the appellant. The complainant said the appellant was very nice to her but started getting “a bit like weird” as she was going into year seven, which was January 2018. The complainant said that the appellant would ask sexual questions and touch her in inappropriate spots when her mother was not around. The complainant said it all happened throughout the year of year seven and just stopped in year eight.[1][1]AB 421/55. The complainant said prior to the appellant engaging in that behaviour with her, things had started to get weird between the appellant and her mother. The appellant would have sex with her very intoxicated mother, after she had passed out. She described that event as having occurred on Christmas Eve 2017. The complainant said there were other occasions. The complainant said the first occasion the applicant touched her occurred after Christmas 2017. The complainant was play wrestling with the appellant when the appellant started to grab her on her bottom. The complainant said the appellant then touched her on the chest, using two hands, on the top of her clothes (Count 2). The complainant said it was “pretty quick” and the appellant was “kind of just like laughing”.[2][2]AB 426/40. The complainant said that either the same evening or the next night, the appellant came into her room whilst the complainant was in bed. The appellant put his hand under her underwear before touching her private part for approximately 20 seconds (Count 3). The complainant was wearing pineapple shorts at the time. The appellant moved his hand around on her “clit”.[3] The complainant said that after the appellant touched her private part for 20 seconds, he said goodnight and left the bedroom. The next day the appellant said she should try it herself.[4][3]AB 431/21.[4]AB 431/57. The complainant said on another occasion when the appellant and the complainant were sitting on the couch, the appellant started asking the complainant whether she knew what masturbating was and had she done it. He also asked did she want to see his private part. The complainant said after she left the couch and went to bed, the appellant walked into her bedroom wearing board shorts. He pulled them down and asked if she wanted to “try it with me”.[5] The appellant pulled his penis out. It was erect (Count 4). The appellant laughed and left the room. The complainant estimated that event occurred a few days after the first incident. In cross-examination, the complainant described the appellant as wearing pyjamas at the time.[5]AB 437/58.

Decision

Reasons for decision

The complainant consistently gave accounts of multiple acts of penetration without consent, over an extended period of time. The jury verdicts of not guilty are consistent with accepting that account but not being satisfied beyond reasonable doubt of the individual charged acts of penetration. Accordingly, the verdicts of guilty of Counts 1, 2, 3 and 8 were not unreasonable.Conclusion The determination of a ground of appeal that a verdict is unreasonable requires the Court to undertake an independent assessment of the evidence to determine whether it was open to the jury, on a consideration of the evidence as a whole, to be satisfied of the appellant’s guilt of each offence beyond a reasonable doubt.[30][30]Pell v The Queen (2020) 268 CLR 123. However, a verdict might be unreasonable for reasons apart from whether it was open to the jury to be satisfied of the appellant’s guilt to the requisite standard,[31] where a consideration of the record supports a conclusion that the jury’s acquittal on one count must have involved an actual rejection of the complainant’s evidence.[32] That factor, in conjunction with other factors may result in verdicts of guilty of other counts being unreasonable.[31]M v The Queen (1994) 181 CLR 487, 493.[32]Jones v The Queen (1997) 191 CLR 439, 453-454. In TK v The Queen, Simpson J (with whom McClellan CJ at CL and Latham J agreed) said:“…where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open “upon the whole of the evidence”. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).”[33][33](2009) 74 NSWLR 299, [135]. Whilst the complainant gave general evidence of multiple occasions of digital and penile penetration throughout the period of the maintaining count, the allegations in Count 7 related to a specific instance of anal penetration without consent. The complainant’s evidence in respect of those allegations was detailed and did not materially vary under cross-examination. The jury’s acquittal, by majority, of the appellant of that count and, unanimously, of the alternate count of unlawful carnal knowledge, is only consistent with a conclusion that the jury did not believe the complainant’s evidence as to the occurrence of that event. The acquittal is not explicable on a ground such as a failure to be satisfied beyond reasonable doubt as to a lack of consent. Further, and contrary to the submission of the respondents, the appellant’s acquittal on Count 7 is not consistent with the jury having a doubt about anal penetration. Nothing in the complainant’s account gave a reasonable basis for penetration itself to be an issue. The complainant was specific and consistent as to the fact of penetration of her anus by the appellant’s penis.

Ratio Decidendi

Legal Principle Established

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