R v WBZ

Case [2023] QCA 256

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBZ [2023] QCA 256

PARTIES:

R
v
WBZ
(appellant)

FILE NO/S:

CA No 76 of 2023
DC No 51 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Emerald – Date of Conviction: 20 April 2023 (Kent KC DCJ)

DELIVERED ON:

15 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2023

JUDGES:

Flanagan JA and Buss AJA and Kelly J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with two counts of common assault (counts 1 and 5), two counts of assault occasioning bodily harm (counts 2 and 4), two counts of strangulation in a domestic setting (counts 3 and 7) and one count of wilful damage (count 6) – where the jury found the appellant guilty of counts 3 and 6 and not guilty of counts 1, 2, 4, 5 and 7 – where the appellant appeals against his conviction for count 3 on the basis that the verdict of the jury for count 3 is unreasonable in that it is irreconcilable with the verdicts of acquittal for counts 1, 2, 4, 5 and 7 – where the circumstances of the offending in relation to counts 4, 5 and 7 are separate and distinct from the offending relevant to count 3 – where, in relation to counts 4 and 5, there were inconsistencies between the complainant’s recollection and the appellant’s recollection – where the jury were given a Robinson direction – where the different verdicts in relation to counts 1 and 2, as opposed to count 3, are explicable on the basis that there was corroboration in respect of count 3 but not for counts 1 and 2 – whether there is a rational way to reconcile the acquittals on counts 1, 2, 4, 5 and 7 with the conviction on count 3

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
R v GAW[2015] QCA 166, considered
R v Fanning[2017] QCA 244, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

G M McGuire for the appellant
A Walklate and N Butler for the respondent

SOLICITORS:

Anne Murray & Co Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FLANAGAN JA:  On the first day of a three day trial before his Honour Judge Kent KC, the appellant was arraigned in relation to a seven count indictment.  The indictment contained offences of common assault (counts 1 and 5), assault occasioning bodily harm (counts 2 and 4), strangulation in a domestic setting (counts 3 and 7) and wilful damage (count 6).  Each of these offences were alleged to be domestic violence offences.

  2. The appellant and the complainant had been in a domestic relationship…

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R v WBZ [2023] QCA 256
Case
[2023] QCA 256
Decision Date

CaseChat Overview and Summary

The case of R v WBZ involves an appeal by the appellant against his conviction for one count of strangulation in a domestic setting. The appellant was charged with multiple counts of assault and damage to property. The jury found the appellant guilty of one count of strangulation and one count of wilful damage, but acquitted him of the remaining counts. The appellant appealed his conviction for the strangulation count, arguing that the jury's verdict was unreasonable and inconsistent with their acquittals on other counts. The legal issues before the court were whether the jury's verdict was rational and whether there was a way to reconcile the acquittals on other counts with the conviction on the strangulation count.

The court examined the evidence and the reasoning behind the jury's verdict. The jury's verdict was found to be rational, as the complainant's evidence for the strangulation count was corroborated, and there were inconsistencies in the complainant's and appellant's recollections of events for other counts. The jury had been properly directed to consider each count separately and to carefully scrutinise the complainant's evidence. The court held that the verdicts could be reconciled based on the evidence and the jury's understanding of the charges.

The court dismissed the appeal, holding that the jury's verdict for the strangulation count was rational and consistent with the acquittals on other counts. The evidence and the jury's understanding of the charges provided a reasonable basis for the verdicts. The appeal was therefore unsuccessful, and the conviction for the strangulation count was upheld.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

When the above principles are applied to the facts and circumstances of the present case, the jury’s verdict for count 3 cannot properly be considered unreasonable. The verdicts may be reconciled on a number of bases, including that the complainant’s evidence for count 3 was independently corroborated. Further, for counts 1, 2 and 5, each of which concerned an element of assault, the jury were directed in relation to the defence of provocation.The evidenceThe complainant In 2020 the complainant was living with the appellant together with two children; the appellant’s three year old son from a previous relationship and their infant daughter who was approximately two months old. On the night of 13 September 2020 the complainant and the appellant were at dinner with the appellant’s boss. An argument ensued because the complainant wanted to go home. On arriving home, the son was put to bed and the complainant was attempting to feed her infant daughter who had “feeding issues”. The complainant suggested that the appellant should sleep in the spare room. When the appellant suggested to her that she should go into the spare room, the complainant hit the appellant on the arm and said “are you fucking kidding me”. The appellant got up and walked around to her side of the bed, grabbed her hair and pulled it back. This conduct constituted count 1 for which the appellant was found not guilty. The appellant then grabbed the baby and was holding her in his left arm. He walked out of the bedroom and was followed by the complainant. They continued to argue. The complainant told the appellant to give back the baby. The complainant gave evidence that she may have provoked the appellant:[12]“… Yeah, we had an argument – like, I – I can’t quite remember exactly what we were – like, what I was saying to him but I probably – like, I could’ve provoked him by maybe insinuating he was going to hurt [the baby] or – or me. I don’t know. I provoked him someway and that’s when he threw me to the floor near the couch.”[12]AB 106 lines 19–24. When the complainant tried to get up from the floor, the appellant kicked her in the face which she described as a contact between the bridge of the appellant’s bare foot and her mouth. This conduct constituted count 2 for which the appellant was found not guilty. The complainant did not know whether she lost consciousness, but she described her teeth going through the inside of her lip and that she had blood on her nightie and there were a few drops on the ground. She was not entirely certain, but she thought she had this injury for a few days but did not seek medical assistance. After being kicked, she crawled over and sat on a wooden shoebox. The appellant came over to her. He grabbed the complainant around her neck with his right hand tightly. He was still holding the baby in his left arm. He pushed on the complainant’s neck and pushed her against the wall. She could not breathe but did not pass out. She thought the appellant had his right hand around her throat for 20 to 30 seconds. He let go and returned to the bedroom with the baby. This conduct constituted count 3 for which the appellant was found guilty.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

After the summing up, the court received two notes from the jury. The first note enquired whether in relation to count 4 (which was particularised as assault occasioning bodily harm – backhand in the car) it was essential that the assault be proven to have occurred inside the car rather than outside of the car.[44] This question was answered by his Honour in the affirmative and was the subject of a re-direction in the following terms:[45]“When formulating particulars, as the Crown is required to do, they are forced to make, you know, what might be regarded as tactical decisions, and the particulars they have relied on here is consistent with what the complainant says is, which is that she was backhanded inside the car, so that is what the Crown case is. That is what they stick to, and that is what they are confined to.”[44]AB 66 lines 41–44.[45]AB 69 lines 17–21.Consideration The appellant does not seek to challenge the verdict of guilty in relation to count 6 (wilful damage – mobile phone). As conceded by the appellant, the verdict of guilty “was inconsequential as it did not involve any real challenge to the credibility of the complainant”.[46] This is an appropriate concession because the complainant’s evidence that the appellant damaged her phone by throwing it to the ground was corroborated by the two photographs taken by police of the damage to the phone (Exhibits 4 and 5). Further, the appellant, in his recorded conversation with police, did not deny damaging the phone and could not say one way or the other whether he threw the phone to the ground.[46]Appellant’s Outline of Submissions, paragraph 2. As to counts 4, 5 and 7, the circumstances of this offending are separate and distinct from the offending which occurred some three months earlier on 13 September 2020. Unlike the previous offending, the jury were played the bodycam recording (Exhibit 6) of the conversation that occurred between police and the complainant on the night of 2 January 2021. As well as admitting that she can “rile up” the appellant and further, that she did not wish to make a formal complaint, the complainant made no mention of the conduct constituting the strangulation offence (count 7). The circumstances of that alleged offending are only subsequently detailed by the complainant in her first statement to police on 27 April 2021. The jury, in assessing the complainant’s evidence in relation to counts 4, 5 and 7, and in considering the defence of provocation for count 5, had the benefit of not only the bodycam footage (Exhibit 6) but also the recording of the conversation between police and the appellant (Exhibit 7). This is to be contrasted with the offending constituting counts 1, 2 and 3 where there was no contemporaneous evidence as to what occurred. The complainant first raised the circumstances of the offending for counts 1, 2 and 3 in her statement to police given on 27 April 2021. Quite apart from the above considerations, there is another logical and reasonable basis on which the verdict of not guilty for count 4 may be reconciled with the verdict of guilty for count 3. The jury had been directed to consider each count separately. The jury had also been given a Robinson direction to carefully scrutinise the evidence of the complainant. There was a stark inconsistency between the complainant’s recollection and the appellant’s recollection as to whether the backhanding of the complainant occurred in the car or at the front of the house. As correctly submitted by the respondent, the prosecution faced a significant problem for count 4 as the appellant had made an unprompted statement against interest as to having backhanded the complainant in circumstances different to what was particularised by the Crown. It was evident that the jury, by the question asked, was aware that the Crown had particularised count 4 by reference to a backhand in the car and not at the front of the house. In light of the redirection given by the trial judge, the verdict of not guilty for count 4 is readily explicable by reference to these considerations.