R v WCA

Case [2023] QCA 265

SUPREME COURT OF QUEENSLAND

CITATION:

R v WCA [2023] QCA 265

PARTIES:

R
v
WCA
(appellant)

FILE NO/S:

CA No 212 of 2023
DC No 267 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 25 October 2023 (Porter KC DCJ)

DELIVERED ON:

Date of Orders: 19 December 2023
Date of Publication of Reasons: 22 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2023

JUDGES:

Mullins P and Morrison and Boddice JJA

ORDERS:

Date of Orders: 19 December 2023

1.   The appeal be allowed.

2.   The verdict below be set aside.

3.   There be a retrial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of choking in a domestic setting – where the appellant submits that his conviction on that count was unreasonable or cannot be supported having regard to the evidence because, inter alia, there was no clear evidence of restricted breathing to support the Crown’s particulars – where the complainant’s evidence was that her breathing was restricted, albeit in response to a leading question – where there were matters raised in the evidence which called into question aspects of the complainant’s evidence – where there was independent evidence consistent with the complainant’s account – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of the offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant submits that the trial judge erred in directing the jury as to self-defence such that the trial miscarried – where the directions given to the jury in relation to the applicability of a defence of dwelling and a defence of premises against trespassers failed to properly direct the jury as to central aspects of those defences – where the directions also failed to direct the jury’s attention to the appellant’s account of the assault upon him by the complainant – whether the failure by the trial judge to properly direct the jury on these matters deprived the appellant of a fair chance of acquittal

Criminal Code (Qld), s 267, s 271, s 272, s 277

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, cited
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, cited
R v Miller (2021) 8 QR 221; [2021] QCA 126, cited

COUNSEL:

K M Hillard for the appellant
J D Finch for the respondent

SOLICITORS:

Brisbane Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Boddice JA.

  2. MORRISON JA:  I agree with Boddice JA.

  3. BODDICE JA:  On 25 October 2023, a jury found the appellant guilty of…

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CaseChat Overview and Summary

The appeal in R v WCA involved the appellant's conviction by a jury of one count of choking in a domestic setting. The appellant challenged the conviction, arguing it was unreasonable or could not be supported by the evidence, and that there was an error in the trial judge's directions to the jury regarding self-defence and the defences of dwelling and premises against trespassers. The Court of Appeal was tasked with determining whether the appellant's conviction was supported by the evidence and whether the trial judge's directions to the jury deprived the appellant of a fair chance of acquittal.

The central legal issues revolved around the sufficiency of the evidence to support the jury's verdict and the adequacy of the trial judge's directions to the jury regarding the legal defences. The appellant argued that the evidence did not clearly demonstrate restricted breathing as alleged by the Crown, and that the jury's verdict was unreasonable. Furthermore, the appellant contended that the trial judge's directions to the jury regarding self-defence and the defences of dwelling and premises against trespassers were insufficient, particularly in failing to address the appellant's account of the assault and the elements of being a trespasser and disorderly conduct.

The Court of Appeal found that the evidence was sufficient for the jury to be satisfied beyond reasonable doubt of the appellant's guilt. However, it concluded that the trial judge's directions to the jury on self-defence and the defences of dwelling and premises against trespassers were inadequate. The directions failed to properly address key aspects of these defences, including the appellant's status as a trespasser and his disorderly conduct, as well as the appellant's account of the assault by the complainant. These deficiencies deprived the appellant of a fair chance of acquittal and resulted in a miscarriage of justice. The Court of Appeal allowed the appeal, set aside the verdict, and ordered a retrial.

The Court's orders were that the appeal be allowed, the verdict set aside, and a retrial ordered. This decision underscores the importance of accurate and comprehensive directions to the jury in criminal trials, especially in cases where defences are raised that could significantly affect the outcome.

Orders

Orders of the court

Date of Orders: 19 December 2023

1. The appeal be allowed.

2. The verdict below be set aside.

3. There be a retrial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The jury were directed as to self-defence, both under ss 271 and 272 of the Criminal Code (Qld). The jury were also directed that self-defence was not available if they were satisfied that any assault by the complainant was lawful by reason of a defence of dwelling or defence of premises against a trespasser.EvidenceComplainant The complainant and the appellant commenced a relationship in early 2020. Initially, it was a friendship; subsequently it became intimate. The appellant would stay at the complainant’s house. However, if she had her daughter at the house, he would stay at a friend’s house or live in his car. Initially, the relationship was stable. After a few weeks it deteriorated rapidly. On Monday 15 June 2020, the complainant met some girlfriends for lunch. The appellant joined their group later that afternoon. The complainant described him as angry and not making any effort to speak to anybody. They left and returned home at about 5.00 pm. Initially, the complainant slept on the sofa. At about 9.30 pm, she went to bed. By that time, the appellant was already in bed. The next day, the appellant did not speak much. He was obviously very unhappy. When the complainant asked what was wrong, the appellant replied that he was angry and did not like the complainant’s behaviour or her friends. On Wednesday 17 June 2020, the complainant and the appellant argued before she left the house. When the complainant returned, the appellant’s possessions were gone and he had left the spare key. The complainant rang the appellant and they messaged throughout the day. The appellant said he was still angry. The appellant also said he had left some items of clothing at her residence. On Thursday 18 June 2020, the appellant returned to the house. He stayed overnight. The appellant was still not happy. The next day, 19 June 2020, the complainant told him she was going shopping for her daughter’s birthday party. During that afternoon, the complainant missed many calls from the appellant. The appellant also sent text messages, including asking why the complainant would not answer her telephone. The complainant said when she arrived home later that afternoon the appellant was aggressive, shouting and screaming at her. He said the complainant was an embarrassment and a bad mother. The complainant said she asked him to calm down and to lower his voice. They continued to argue and the complainant said, “I want you to leave and not come back.” The complainant recorded their interactions. Those recordings were played to the jury. The appellant was recorded as saying the complainant had been “atrociously drunk” on Monday; that the only time he had woken up with all his clothes wet was when he lived with her; that she was such an alcoholic; and that she had missed a FaceTime call with her daughter. The complainant was recorded as telling the appellant to do his own washing and that she was not “Your fucking mother.” The complainant said she concluded the recording to send a Facebook message to the wife of one of the appellant’s friends, MJ, asking her to pick him up or she was going to call the police. The complainant did not hear back from MJ. The complainant said the argument kept going; she was telling him to leave, pushing him towards the door. She remembered being near the front door. She next remembered waking up on the floor.

Decision

Reasons for decision

There is one other aspect of the summing up which deserves comment. The trial judge subsequently directed the jury as to the consequence of the appellant having elected to give evidence and as to how that evidence was to be treated by them, depending upon their assessment of its credibility and reliability. Whilst that direction was in accordance with Liberato,[3] in circumstances where there was a clear factual dispute between the complainant and the appellant as to what had transpired in the apartment that night, including who initiated physical contact, it would have been more appropriate for that direction to have been given at the logical and usual point of the summing up, namely, when the jury is being directed as to the assessment of the evidence at trial.[3]Liberato v The Queen (1985) 159 CLR 507.Conclusion An independent assessment of the record as a whole established that it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. However, the directions given to the jury in relation to the applicability of a defence of dwelling and a defence of premises against trespassers, in their consideration as to the lawfulness of an assault by the complainant on the appellant, failed to properly direct the jury as to central aspects of those defences, namely, as to the element of the appellant being a trespasser and as to the element of the appellant conducting himself in a disorderly manner. They also failed to direct the jury’s attention to the appellant’s account of the assault upon him by the complainant. As the lawfulness of any assault by the complainant on the appellant was an issue squarely raised on the evidence for consideration by the jury in assessing the availability of a defence of self-defence, the failure to properly direct the jury on these matters deprived the appellant of a fair chance of acquittal. Accordingly, these failures gave rise to a miscarriage of justice.[4] The respondent did not at the hearing of the appeal suggest that, if the Court were satisfied that there were errors in the directions given on self-defence, it was an appropriate case for the application of the proviso in s 668E of the Criminal Code.[4]Hofer v The Queen (2021) 274 CLR 351.Orders I would order:1.The appeal be allowed.2.The verdict below be set aside.3.There be a retrial.

Ratio Decidendi

Legal Principle Established

The appellant estimated he drank one-third of a bottle of whisky over approximately one hour. By the time the complainant arrived home, he was feeling slightly intoxicated. By the time he was speaking to police, he was slurring his words a little bit. That indicated his level of intoxication. When the complainant came home, the alcohol had not taken effect.ConsiderationGround 1 In determining a ground that a verdict was unreasonable, an appellate court is to undertake an independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt. The relevant task was restated in Dansie v The Queen:[1]“8.… the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that ‘the question which the court must ask itself’ when performing that function is ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’, that question being ‘one of fact which the court must decide by making its own independent assessment of the evidence’.9.The joint judgment in M made clear that ‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses’. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:‘It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’” (citations omitted)[1](2022) 274 CLR 651, 657-658.