R v WCB - [2024] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v WCB [2024] QCA 62

PARTIES:

R
v
WCB
(applicant)

FILE NO/S:

CA No 211 of 2023
DC No 192 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton – Date of Conviction: 19 March 2015 (Bowskill QC DCJ)

DELIVERED ON:

23 April 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 March 2024

JUDGES:

Morrison JA and Fraser AJA and Kelly J

ORDERS:

1. Applications for leave to adduce evidence are refused.

2. The application for an extension of time within which to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the applicant was convicted of one count of unlawful and indecent treatment of a child under the age of 16 years – where the applicant filed for an extension of time within which to appeal – where the jury accepted the complainant’s evidence as credible and that it satisfied the requisite standard that the applicant was guilty – where the applicant admitted to having a sexual attraction to the complainant – where the applicant challenges the verdict on the basis that the jury could not have reached the status of satisfaction as to his guilt – whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – where the applicant also relied on other grounds of appeal including that he was inadequately represented by a defence lawyer and that the evidence from the complainant’s brother could not have been believed by the jury – where, in addition, the applicant submits that his Autism Spectrum Disorder, which was not diagnosed until after the trial, was not explained to the jury and the effects it had on the applicant’s police interview – whether there is any merit in relation to these other grounds of appeal

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, considered
R v Miller (2021) 8 QR 221; [2021] QCA 126, considered

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: On 19 March 2015 the applicant was convicted on one count of unlawfully and indecently dealing with his step-daughter, then a child under the age of 16 years. The conviction followed a four-day trial at which the principal witness was the complainant.
The applicant now brings a number of applications, ultimately seeking to challenge his conviction. Those applications can be summarised as follows:
(a)an application, filed on 1 November 2023, for an extension of time within which to appeal;
(b)six applications to adduce further evidence.[1]

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 WCB

Details

AGLC: R v WCB [2024] QCA 62
Case: [2024] QCA 62
Decision Date: 23 April 2024

CaseChat Overview and Summary

The case of R v WCB involved the applicant, who was convicted of one count of unlawful and indecent treatment of a child under the age of 16 years. The applicant sought an extension of time to appeal his conviction, as well as leave to adduce new evidence. The appeal was heard in the Queensland Court of Appeal, where the applicant argued that the jury's verdict was unreasonable and that he was inadequately represented by his defence lawyer. The applicant also claimed that his Autism Spectrum Disorder, which was not diagnosed until after the trial, should have been explained to the jury and its impact on his police interview should have been considered.

The court was required to decide whether the verdict of guilty was unreasonable or insupportable given the evidence presented, and whether there was merit in the applicant's other grounds of appeal, including inadequate representation by his defence lawyer, the credibility of the complainant's brother's evidence, and the impact of the applicant's Autism Spectrum Disorder on his police interview. The court also had to consider whether the applicant was entitled to an extension of time to appeal and leave to adduce new evidence.

The court dismissed the appeal and refused the application for an extension of time within which to appeal. The court found that the jury's verdict was not unreasonable or insupportable given the evidence, and that the applicant's other grounds of appeal had no merit. The court held that the jury had accepted the complainant's evidence as credible and that it satisfied the requisite standard that the applicant was guilty. The court also found that the applicant was not inadequately represented by his defence lawyer, and that the evidence from the complainant's brother could have been believed by the jury. Finally, the court held that the applicant's Autism Spectrum Disorder, which was not diagnosed until after the trial, was not a factor that should have affected the jury's decision.

The court made the following orders: 1. Applications for leave to adduce evidence are refused. 2. The application for an extension of time within which to appeal is refused.

Orders

Orders of the court

1. Applications for leave to adduce evidence are refused.

2. The application for an extension of time within which to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In his oral evidence the brother said everything he had related in the police interview was correct. In cross-examination the following points emerged:(a)he reiterated that you could not see anything through the keyhole;[41](b)he reiterated that he was playing at his computer when he saw the applicant try to peek through the keyhole;[42](c)he described it as lasting several seconds and said that a couple of weeks later he disclosed the event to his mother;[43](d)he said that he had seen it happen another time and told his mother, whose reaction was not one of belief;[44](e)it was put to him that he had made up the account of the applicant peeking through the keyhole, in order to lend support to the complainant’s claims; the brother disagreed;[45] and(f)the brother agreed that it was only after he had made the claims of the applicant peeking through the keyhole that it was ascertained that you could not see through the keyhole.[46][41]AB 173, lines 22-33.[42]AB 174, lines 10-19.[43]AB 175, lines 8-19.[44]AB 176, lines 10-17.[45]AB 177, lines 34-38.[46]AB 178, lines 1-3.Other evidence The only other witness was Senior Constable Cattell, the investigating officer. His evidence concerned the recording of an interview with the applicant. The recording was played for the jury and they were given a transcript as an aid to understanding what was said. SC Cattell also produced the complainant’s birth certificate to establish her age.[47][47]Exhibit 5.The applicant’s police interview The applicant was interviewed by police on 22 October 2012. In the course of the interview the applicant mentioned that the family were “dealing with a child who suffers from anxiety” and the matters they were dealing with involved “misunderstandings within the family”.[48] He went on to explain what he meant:[49](a)the complainant suffered from anxiety, and her mother was needed to calm her down;(b)when the complainant last visited her father at [a North Queensland town], she “produced … a pornographic video of sorts”, which shocked the applicant and the complainant’s mother;(c)not long after that “she was in … the bathroom at home … I accidently walked past but she had the door wide open and … had no top on and … I felt I needed to speak to her about it”; so the next day he had “a little chat” with the complainant, telling her that she had to keep doors closed and herself covered up because she was “growing up to be a very attractive young lady … that was my exact words”;(d)the conversation was about keeping a bit of decorum, but “unfortunately … she heard something completely different to what I said and … in the afternoon at school she had a sort of a bit of a flip out … and she said [to some friends] that her stepfather told her he was attracted to her … that night she didn’t want to come home”;(e)eventually the complainant calmed down and she came home and “we talked about it openly and … she had a counsellor she sees regularly … and … she had a visit with her and … talked at length to her about it as well”; and(f)the applicant added, that because she talked about it to her school friends it came to the attention of the school counsellor and the school based police officer; he also said that the complainant spoke to her grandmother about it.[48]AB 310, lines 29-56.[49]AB 311-312.

Decision

Reasons for decision

For the reasons I have outlined I would refuse each of the applications to adduce new evidence.Conclusion For the reasons I have expressed above, even if an extension of time were granted, the appeal would be bound to fail. I propose the following orders:1.Applications for leave to adduce evidence are refused.2.The application for an extension of time within which to appeal is refused. FRASER AJA: I agree with the reasons of Morrison JA and his orders. KELLY J: I agree with the reasons of Morrison JA and with the orders proposed by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v WCB [2024] QCA 62
PARTIES:	R v WCB (applicant)
FILE NO/S:	CA No 211 of 2023 DC No 192 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Rockhampton – Date of Conviction: 19 March 2015 (Bowskill QC DCJ)
DELIVERED ON:	23 April 2024
DELIVERED AT:	Brisbane
HEARING DATE:	13 March 2024
JUDGES:	Morrison JA and Fraser AJA and Kelly J
ORDERS:	1. Applications for leave to adduce evidence are refused. 2. The application for an extension of time within which to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the applicant was convicted of one count of unlawful and indecent treatment of a child under the age of 16 years – where the applicant filed for an extension of time within which to appeal – where the jury accepted the complainant’s evidence as credible and that it satisfied the requisite standard that the applicant was guilty – where the applicant admitted to having a sexual attraction to the complainant – where the applicant challenges the verdict on the basis that the jury could not have reached the status of satisfaction as to his guilt – whether the verdict of guilty was unreasonable or could not be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – where the applicant also relied on other grounds of appeal including that he was inadequately represented by a defence lawyer and that the evidence from the complainant’s brother could not have been believed by the jury – where, in addition, the applicant submits that his Autism Spectrum Disorder, which was not diagnosed until after the trial, was not explained to the jury and the effects it had on the applicant’s police interview – whether there is any merit in relation to these other grounds of appeal Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, considered R v Miller (2021) 8 QR 221; [2021] QCA 126, considered
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent