R v LBG[2024] QCA 205

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  For the reasons given by Davis J, I joined in the making of the court’s orders on 17 October 2024.
2. [2]
   VAUGHAN AJA:  I joined in the court’s orders of 17 October 2024 allowing the appeal and setting aside the convictions on counts 2 - 4 of the indictment for the reasons as now provided by Davis J.

3. [3]
   DAVIS J:  On 17 October 2024 I joined in orders of the Court that:

1. Allow the appeal.
2. Set aside the convictions on counts 2 to 4 of the indictment.
3. Order a retrial on counts 2 to 4 of the indictment.
4. Reasons to be published at a later date.

4. [4]
   These are my reasons for joining in those orders.
5. [5]
   The appellant was tried in the District Court on 4 counts:

“Count 1 that on a date unknown between the eighth day of July, 2022 and the first day of August, 2022 at Norman Gardens in the State of Queensland, [the appellant] unlawfully, and without [the complainant’s] consent, choked [the complainant], and [the appellant] was, at the relevant time, in a domestic relationship with [the complainant]

And the offence is a domestic violence offence.^[1]

Count 2 that on a date unknown between the eighth day of July, 2022 and the first day of August, 2022 at Norman Gardens in the State of Queensland, [the appellant] unlawfully, and without [the complainant’s] consent, choked [the complainant], and [the appellant] was, at the relevant time, in a domestic relationship with [the complainant]

And the offence is a domestic violence offence.^[2]

1. Count 3
   that on the thirtieth day of July, 2022 at Norman Gardens in the State of Queensland, [the appellant] raped [the complainant].

And the offence is a domestic violence offence.^[3]

1. Count 4
   that on the thirtieth day of July, 2022 at Norman Gardens in the State of Queensland, [the appellant] procured [the complainant] without her consent, to commit an act of gross indecency.

And the indecent assault included bringing into contact part of the anus of [the appellant] with the mouth of [the complainant].

And the offence is a domestic violence offence.^[4]”

6. [6]
   After trial by jury in Rockhampton the appellant was, on 2 November 2023, acquitted of count 1 and convicted of each of counts 2, 3 and 4.
7. [7]
   The appellant and the complainant were married and had two children.  The offences allegedly occurred in July 2022 in the course of that domestic relationship.
8. [8]
   All direct evidence of the offending came from the complainant.  In support of count 1 on the indictment, she gave this evidence:

“Where was [the appellant] then in relation to the bed?---He was towards that end corner of the bed. Probably back a bit to – more towards [indistinct] at the bottom of the bed there look – facing each other.

Now, you said that he grabbed you around the throat; what happened then?---He grabbed me and he lifted me off my feet. I don’t recall – I just recall his right hand around my throat and I – I couldn’t breathe. It felt like my head was going to pop off of my body.

All right. When you say he lifted you up, do you remember what eye level you – your eyes were compared to him?---Yes. I remember looking into his eyes when he lifted me up, so I was about eye level with him.

…

Now, after he lifted you up and was holding you off the ground, how long do you think he held you like that?---It felt like a very long time. It – about 15, 20 seconds.

All right. Now, you said 15 to 20 seconds; was he doing anything at the time that he did that to you?---No. He was just holding onto my throat choking me.

Can you say anything about his eyes that were at your eye level at that time?---He just looked really angry. The anger in his eyes, it – it – it scared – scared me.

All right. What were you doing during that 15 to 20 seconds?---I think I was just – I was just trying to – I was trying to move to try and make him let go of me.

And what happened then?---He then threw me onto the bed.”

9. [9]
   Count 2, like count 1, alleged an act of choking.  Count 2 occurred on the same occasion as count 1.  As can be seen from the passage above, the complainant said that after the appellant committed count 1, he threw her onto the bed.  Her evidence in support of count 2 was then:

“- - - the bed? All right. Where was he after he threw you onto the bed?---He was still standing, but then he came back over top of me with his right hand and choked me again, and his other hand was leaning on the bed, kind of propping him up, because his feet were still on the ground.

And when you say they were still on the ground, were they at the end of the bed?---Yes.

All right. Now, on that occasion when he was holding you by the throat, do you remember what hand, did you say?---Right hand.

Do you know how long he held that hand to your throat on that occasion?---I don’t – don’t remember exactly, but I would say around the same, 15, 15 – 10, 15 seconds.

Now, on this occasion, were you able to breathe?---No.

And on the first occasion, were you able to breathe?---No.

Now, between the first occasion where he was choking you and the second occasion when he was choking you, before he choked you that second time, what were you doing while you were still lying back down on the bed?---I was screaming.

Do you remember what you were screaming?---I mean, it wasn’t screaming. I just – like, yelling, like, ... like, I didn’t say anything. It was just, like, ... like, screaming.”

10. [10]
    Counts 3 and 4 allegedly occurred during an incident separate to that which gave rise to counts 1 and 2.  The complainant gave evidence that during an argument, the appellant told her that he was going to “fuck her in the arse”.  The complainant told the appellant that she didn’t want that to occur and he then put his penis in her mouth without her consent.  That constituted the count of rape, being count 3 on the indictment.  The complainant said the appellant then laid on the bed and forced her to lick his anus.  That constituted count 4, procuring an act of gross indecency.
11. [11]
    As permitted by Part 6A of the Evidence Act 1977 (Qld), the complainant gave quite extensive evidence as to the nature of her relationship with the appellant, the effect of which was that he was abusive.  By admission, evidence was admitted of text messages that had passed between the complainant and the appellant.  They were the subject of ground of appeal (a) to which I will return.  The appellant gave evidence denying the alleged offending.
12. [12]
    Apart from an analysis of the evidence concerning the text messages, there is no need to refer to any of the other evidence led in the trial.

Grounds of appeal

13. [13]
    By leave, the three grounds of appeal contained in the Notice of Appeal were replaced with five grounds, but it is only necessary to deal with one limb of Ground (a) and with Ground (e) which are:

1. “a.
   A miscarriage of justice was occasioned by irregularities relating to the use that was made of, and directions given about inadmissible evidence namely;

1. i.
   A series of text messages sent between the complainant and appellant

…

1. e.
   The verdict of guilty on count two was unreasonable as [it’s] inconsistent with the acquittal on count one.”

Ground (a): The text messages

14. [14]
    Joint admissions^[5] were made which were contained in a document which became exhibit 2.  Relevantly:

“The following text messages were sent between [the appellant] (M) and the complainant (A) using their respective mobile phones on the relevant dates below.

On 27/10/2021:

1. A:
   I’m done with you.

1. M:
   Shush.

1. A:
   You are disgusting.

1. A:
   And an abuser.

1. A:
   I will be telling everyone what has been going on for the last 6 years.

1. M:
   Go and do your work.

1. M:
   Stop your crap.

1. M:
   Stop.

1. M:
   Stop.

1. M:
   Stop.

1. M:
   Go do your work.

1. A:
   How much pain you have given me not just emotionally by physically. How all my bruises are from you.

1. A:
   This is not love anymore.

1. M:
   I’ll talk with you tonight.

On 28/10/2021:

1. A:
   We fight all the time. You take me into a separate room to physically hurt me.

On 18/11/2021:

1. A:
   You have made it very clear. You hate my family, you will never let them come to our house, you tell me when I can see them and for how long, I can ring them, I can't send them photos and I can’t even mention their name. I’m not willing to accept that kind of control over my life. And no it’s not just about them. If I have attitude or say something you aren't happy with you will just hurt me like you always do.

On 23/11/2021:

1. A:
   You hurt me.

On 20/07/2022:

1. M:
   You committed to me, through better or worse . If it’s that easy for you to give up, you can fuck off and have nothing.

1. A:
   You abuse me. I didn’t agree to that. I stuck through 6 fucking years of this shit. How is this easy for me. What a joke.

1. M:
   Seems to be easy for you to throw away everything we have worked hard for. Maybe you should actually think about what you’re giving up.

On 24/07/2022:

1. M:
   If you could just not say a thing, and walk in her and suck me off. That would be amazing.

1. A:
   I really don’t want to.

1. M:
   Just put in the effort.

1. A:
   You used physical violence and threats to make me try last night. Like what the hell.

1. M:
   I am beyond frustrated, all I want is for us to work.

1. M:
   All I want is teamwork.

1. M:
   Desire.

1. A:
   Ok well I don’t want that.

1. M:
   You don’t want teamwork?

1. M:
   Or for us to work?

1. A:
   I don’t want anything right now.

1. M:
   Fuck off then.

1. M:
   Seriously pack your shit and leave.

1. A:
   This is my house as well and I’m not leaving without the boys.

1. M:
   So which option?

1. M:
   1

1. M:
   2

1. M:
   Or 3

1. M:
   Do you want me to leave?

1. A:
   I just want things to be civil. And not worried you are going to get angry and hurt me.

1. M:
   Well then pick option 1

1. A:
   No that’s not fair. That’s horrible.

1. M:
   What’s not fair, is the way BOTH of us act.

1. A:
   [the appellant], you will never take the responsibility for what you do. You will also always resort to violence when you feel you have no other option or you get angry enough.

1. M:
   Bed time.”^[6] (emphasis added)

15. [15]
    The fact that was admitted is the sending of the text messages in the terms set out in the admissions document.  There was no admission by the appellant of the truth of anything stated in the text messages.
16. [16]
    In the text messages, the complainant makes a number of assertions as to the appellant’s conduct:

1. he is “an abuser”;
2. he has been abusing the complainant “for the last 6 years”;
3. the abuse has been emotional and physical;
4. he has assaulted and bruised the complainant;
5. he threatened the complainant; and
6. he attempted to control the complainant.

17. [17]
    In none of the text messages passing from the appellant back to the complainant does the appellant accept the truth of those allegations.
18. [18]
    The admissions document was tendered by the Crown prosecutor during his opening address to the jury.  The learned trial judge gave the following direction to the jury at that point:

“Now, the – in terms of exhibit 2, they’re a series of admissions. When you finally get the document, you’ll see that what has occurred is, the parties have agreed that there were text messages between the complainant and the defendant which say certain things. And those – that course of texting is now the subject of an admission. The things in the admissions can be taken to be true. They – the parties agree that they’re true beyond reasonable doubt. So you start from the premise that everything in the admissions document is true, and you can accept it. …”  (emphasis added)

19. [19]
    It was not made clear that there is no admission by the defence as to the truth of the things asserted by the complainant in the text messages.  The direction tends to suggest the contrary.  The judge points out that the admission is that text messages had passed between the complainant and appellant “which say certain things” and that “the things in the admissions can be taken to be true”.  The jury is directed to start from the premise … “that everything in the admissions document is true, and you can accept it”.
20. [20]
    Later in the trial but before they had retired to consider their verdicts, the jury produced a note in terms “Can we have the admissions sheet”.  His Honour directed the jury:

“And that’s exhibit 2. And I’d previously directed that you all get a copy of it. You’ll see that it contains a number of very material facts. They are admitted between the parties. So as I said to you yesterday, everything in the admissions is proved beyond reasonable doubt. So you can start your consideration of the issues in the trial from the premise that everything here is true beyond reasonable doubt. …” (emphasis added)

21. [21]
    Again, his Honour did not take the opportunity to make clear to the jury that the truth of the assertions made in the text messages was not admitted.
22. [22]
    In summing up the case, the trial judge gave some general directions about evidence.  These included:

“Some evidence may directly prove a thing. A person who saw or heard or did something may have told you about that from the witness box. The documents and other things put into evidence as exhibits may also tend directly to prove facts …”

23. [23]
    From that basic direction that the “exhibits may also tend directly to prove facts”, his Honour went on to refer to the admissions document:

“On the facts before you, you can also look at the admissions which are exhibit 2 and ask yourself if these admitted facts that are taken to be proved beyond reasonable doubt support the evidence of a particular witness. …”

24. [24]
    The invitation to consider the admissions and consider whether they support the evidence of a particular witness is not accompanied by any explanation that all that is admitted is the sending and receipt of the text messages, not the truth of their content.  What followed then in the summing up were references to various evidence given by each of the complainant and the appellant.  His Honour’s analysis was limited to contrasting the general evidence of the complainant as to escalating violence with the evidence of the appellant that there were only verbal disagreements.
25. [25]
    After that analysis, the judge told the jury:

“So you have got two completely different versions of this background of alleged domestic violence from 8^th of April 2020. So what might assist you is to look at what is admitted in terms of communications between the parties.”

26. [26]
    Therefore, after directing the jury that the admissions might “support the evidence of a particular witness” and then highlighting evidence from the complainant and the appellant of what actually occurred, the jury was then directed to turn to the text messages.
27. [27]
    What followed was an analysis by his Honour of the text messages, including:

“The first one is 27.10.21, so that is within the period that both of them have given these completely different versions. If you look down, you will see that they’re distinguished between their first initials, A meaning the complainant, and M being the defendant, and part of these include the following lines, “You are disgusting”, she says, “and an abuser”, she says. And then she says:

I will be telling everyone what has been going on for the last six years.

There is no denial. He just says:

Go and do your work -”

28. [28]
    True it is that there is no denial of the assertion made by the complainant in the text message of 27 October 2021.  In the context though of the judge’s direction to consider the text messages as supporting the credibility of witnesses (relevantly here, the complainant) the obvious danger is that the jury would consider the absence of denial and accept the truth of the assertion made in the text message that the abuse had been ongoing for six years and use that to bolster the evidence of the complainant.
29. [29]
    Later, during his analysis of the text messages, his Honour says:

“And then there is an exchange again where she says:

You always resort to violence when you feel you have no other option or get angry enough -

and he does not say, “I don’t.” He just says “bedtime”. So you can use this as a means of trying to work out which version of events you find more credible, but you have still got to bear in mind the onus. You have to find the defendant guilty beyond reasonable doubt. If you have a reasonable doubt, you have to acquit.

Now, the defendant - pardon me. There are other things that - or general considerations that you might think are of assistance in working out what evidence you accept, and it is up to you how you assess the evidence and what weight, if any, you give to a witness’ testimony or to an exhibit, but the utility of the admissions is that they are agreed by the parties as true beyond reasonable doubt.”

30. [30]
    In this passage, the judge again invited the jury to use the text messages to determine which witnesses’ evidence should be accepted.  Again, his Honour did not take the opportunity to explain that there had been no admission as to the truth of what was asserted in the text messages.  Again, the judge stated that the admissions “are agreed by the parties as true beyond reasonable doubt” without emphasising that all that was admitted was the fact of the transmission of the messages.
31. [31]
    It is not submitted by the appellant that the text messages were not admissible.  There are various bases upon which they are admissible.  However, they were not admissible as proof of the assertions made by the complainant in them.  The Crown did not tender the text messages as evidence of a confession or concession based on the failure of the appellant to deny the assertions.
32. [32]
    In the absence of careful directions limiting the jury’s use of the text messages, there was serious perceivable risk of misuse.  The appropriate directions were not given.
33. [33]
    As already observed, the direct evidence of the alleged commission of the offences all came from the complainant.  There were sworn denials by the appellant who gave evidence.  The jury was faced with an assessment of the credibility and reliability of both the complainant and the appellant.  They doubted the complainant’s version, at least to the extent of acquitting the appellant on count 1.  In that context, the failure to properly direct the jury in relation to the text messages was a serious defect and a miscarriage of justice occurred.
34. [34]
    For those reasons, the convictions had to fall.

Ground (e): Inconsistent verdicts

35. [35]
    It was conceded by the appellant that there must be a retrial on counts 3 and 4.  He pressed for an acquittal on count 2 on the basis that, having acquitted him on count 1, the jury’s verdict on count 2 was unreasonable.
36. [36]
    The jury is required by law to return a verdict on each count on an indictment which contains more than one count.  The jury is entitled to return different verdicts on different counts and is obliged to do so if, after their deliberations, they are satisfied beyond reasonable doubt of guilt on some counts and not others.
37. [37]
    A guilty verdict will be unreasonable as being inconsistent with a not guilty verdict only when there is no logical basis upon which the jury could have delivered different verdicts on the two counts in question.^[7]
38. [38]
    It is easy to see why the jury may have acquitted the appellant in relation to count 1.  The complainant’s evidence was that the appellant grabbed her by the throat and then lifted her off the ground for 15 to 20 seconds.  That might be thought to be unlikely and therefore give rise to a reasonable doubt as to the commission of count 1.
39. [39]
    A jury is entitled to consider a doubt they hold in relation to one count when considering a separate count.^[8]  This is especially so when both counts depend upon acceptance of the evidence of the same witness.  But it does not follow that because the jury has not accepted the credibility or reliability of the witness to a standard beyond reasonable doubt on one count, they cannot do so in relation to the other count.
40. [40]
    The complainant’s evidence was that counts 1 and 2 occurred in the course of a domestic argument.  That argument became violent and there were two acts of choking within a short period.  The jury could easily have concluded that in that environment, the complainant has misdescribed the first incident of choking such that they were not prepared to accept her evidence beyond reasonable doubt.  It does not follow that it was not open to the jury to accept her evidence in relation to count 2.  In my view, it was open to the jury to accept the evidence of the complainant on count 2 notwithstanding their verdict on count 1.
41. [41]
    In my view, the conviction on count 2 is not inconsistent with the acquittal on count 1.  Ground (e) has no substance so there should be a retrial on count 2.