R v WBY - [2023] QCA 230

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBY [2023] QCA 230

PARTIES:

R
v
WBY
(appellant)

FILE NO/S:

CA No 265 of 2022
DC No 302 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 24 October 2022 (Allen KC DCJ)

DELIVERED ON:

24 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2023

JUDGES:

Mullins P, Boddice JA and Williams J

ORDER:

Appeal dismissed.

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 one count of indecent treatment of a child under 16 and one count of rape – where the touching that constituted the two offences took place over a period of minutes and comprised of one episode of offending – where after the jury commenced deliberations the jury requested to hear portions of the complainant’s s 93A evidence narrowed to the complainant’s account to detectives of the alleged incident – where the selected parts of the complainant’s s 93A interview and s 21AK pre-recorded evidence that were replayed included cross-examination of the complainant – whether a miscarriage of justice was occasioned by the failure of the trial judge to warn against giving the complainant’s evidence undue weight because parts were played to them twice and the failure to remind the jury when the parts of the complainant’s evidence were replayed of the appellant’s evidence

R v Miller (2021) 8 QR 221; [2021] QCA 126, cited
R v SDL[2022] QCA 207, considered

COUNSEL:

L C Falcongreen for the appellant
S L Dennis for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: On 24 October 2022 the appellant was convicted in the District Court after trial before a jury of one count of indecent treatment of a child under 16 (count 1) and one count of rape (count 2). Both offences were committed against the same complainant on 25 April 2021.
The appellant appeals against the conviction on the ground that a miscarriage was occasioned by the failure of the learned trial judge to warn the jury against giving the complainant’s evidence in chief undue weight because it was played to them twice and failing to remind the jury of the defence evidence.
The prosecution case at trial depended on the jury’s acceptance of the complainant’s evidence of the offending conduct beyond reasonable doubt. The appellant denied that he did the acts alleged by the complainant and the essence of the submissions put to the jury on behalf of the appellant that reflected the appellant’s counsel’s cross-examination of the complainant about inconsistencies within her own evidence and between her evidence and that of other witnesses was that the complainant was a liar.
Summary of the relevant evidence
The appellant was a friend of the complainant’s family, as they had previously been…

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 WBY

Details

AGLC: R v WBY [2023] QCA 230
Case: [2023] QCA 230
Decision Date: 24 November 2023

CaseChat Overview and Summary

In the case of R v WBY, the appellant was convicted by a jury of one count of indecent treatment of a child under 16 and one count of rape. The appeal against conviction centred around the trial judge's failure to warn the jury against giving undue weight to the complainant's evidence, particularly as parts of this evidence were replayed during the jury's deliberations. The appellant argued that this non-direction constituted a miscarriage of justice. Additionally, the appellant contended that the trial judge did not adequately remind the jury, during the replay of selected parts of the complainant's evidence, of the appellant's evidence which challenged the complainant's account. These issues were the primary focus of the appeal before the court.

The court considered whether the trial judge's omissions amounted to a miscarriage of justice. It was established that the jury's acceptance of the complainant's evidence was crucial for the prosecution's case, while the appellant's defence relied on discrediting the complainant's credibility. The court acknowledged the importance of ensuring that the jury gives appropriate weight to evidence, especially when parts of it are replayed. However, the court found that while the trial judge's failure to warn against giving undue weight to the replayed evidence was an error, it did not necessarily lead to a miscarriage of justice in this case. Furthermore, the court determined that the trial judge's failure to remind the jury of the appellant's evidence during the replay did not prejudice the appellant's case significantly enough to warrant a new trial.

Ultimately, the court dismissed the appeal, holding that the errors made by the trial judge did not occasion a miscarriage of justice. The convictions were therefore upheld. The court did not find that the trial judge's omissions were so significant as to undermine the fairness of the trial or the reliability of the jury's verdict. The appellant's appeal was thus unsuccessful, and the original convictions stood.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution case at trial depended on the jury’s acceptance of the complainant’s evidence of the offending conduct beyond reasonable doubt. The appellant denied that he did the acts alleged by the complainant and the essence of the submissions put to the jury on behalf of the appellant that reflected the appellant’s counsel’s cross-examination of the complainant about inconsistencies within her own evidence and between her evidence and that of other witnesses was that the complainant was a liar.Summary of the relevant evidence The appellant was a friend of the complainant’s family, as they had previously been neighbours between 2013 and 2015. When the offending occurred, the complainant was 14 years old and resided with her parents. There was a birthday party at the family home on Saturday 24 April 2021 for her younger brother. The appellant and his partner and children had arrived to stay with the family on 23 April 2021 and left on 26 April 2021. After many of the guests had left the party and others had gone to bedrooms in the house to sleep, some children including the complainant were in the lounge room on mattresses watching movies. The appellant fell asleep in the lounge room on a couch. The complainant was on the double mattress on the floor of the lounge room next to her friend X who was in the middle and was also 14 years old. On the other side of X was the appellant’s son Y who was also 14 years old. The two single mattresses were occupied by three young children of the appellant. The first police officer to whom the complainant made a complaint about the appellant’s conduct on 27 April 2021 was Senior Constable Neville. He recorded his conversation with the complainant on a field tape that was tendered at the trial (exhibit 14) as preliminary complaint evidence. The complainant explained she had come to the police station because a grown man was touching her inappropriately and said the following. She and her friend were sleeping out in the lounge room and the appellant moved his children over and lay down next to the complainant and started touching her inappropriately. He kept kissing her, put his hand down her pants and kept touching her and he kept touching her chest. The next morning he kept following her and looking at her quickly and she did not like it. The complainant’s s 93A statement was recorded on 27 April 2021 soon after the initial complaint had been made to Officer Neville. The complainant’s evidence included the following. The complainant and X looked at the time at 12.48 am and the complainant deduced it was a bit earlier, say 12.40 am, when the appellant came up to her and started touching her inappropriately. He was trying to wake her up and saying “you know you want me”. He lay down next to her. He had his hand down her shirt, touching her chest. He then had his hand down her pants “touching down there” and he was “tongue kissing and everything”. A bit of his hand went inside her vagina. The complainant rolled over to face her friend X. The appellant was telling her to come with him but she did not go with him and pretended she was still sleeping. He tried to move her and then he got up and walked out to the kitchen. He then returned and tried tickling her ribs. He grabbed her arms and tried pulling her off her friend, but the complainant was holding on “really tight” to X’s arm. The complainant whispered to X saying that she needed her help and to come to the bathroom. They both got up and walked to the bathroom and the complainant was crying. The appellant went to the couch after X and her got up. X went back to the lounge room and grabbed the blankets and pillows to set themselves up in the bathroom. They went to her parents’ room and the complainant told them what happened but they told her to go back to bed. The complainant and X moved the table in the dining room out a bit and set up their bed under the table which is where they then slept. On the night of the party, the appellant was wearing a grey “hoodie thing” and black shorts. The complainant wore black shorts and a top to bed. When they were in the bathroom, the complainant had sent a text to Z at 12.49 am on X’s phone saying she needed help. The appellant had never previously touched the complainant inappropriately.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v WBY [2023] QCA 230
PARTIES:	R v WBY (appellant)
FILE NO/S:	CA No 265 of 2022 DC No 302 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 24 October 2022 (Allen KC DCJ)
DELIVERED ON:	24 November 2023
DELIVERED AT:	Brisbane
HEARING DATE:	10 October 2023
JUDGES:	Mullins P, Boddice JA and Williams J
ORDER:	Appeal dismissed.
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 one count of indecent treatment of a child under 16 and one count of rape – where the touching that constituted the two offences took place over a period of minutes and comprised of one episode of offending – where after the jury commenced deliberations the jury requested to hear portions of the complainant’s s 93A evidence narrowed to the complainant’s account to detectives of the alleged incident – where the selected parts of the complainant’s s 93A interview and s 21AK pre-recorded evidence that were replayed included cross-examination of the complainant – whether a miscarriage of justice was occasioned by the failure of the trial judge to warn against giving the complainant’s evidence undue weight because parts were played to them twice and the failure to remind the jury when the parts of the complainant’s evidence were replayed of the appellant’s evidence R v Miller (2021) 8 QR 221; [2021] QCA 126, cited R v SDL[2022] QCA 207, considered
COUNSEL:	L C Falcongreen for the appellant S L Dennis for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent