R v FBJ[2024] QCA 242

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I agree with Brown JA.
2. [2]
   BROWN JA:  The appellant was convicted of one count of indecent treatment of a child under 16, under 12, following a trial.  He was sentenced to 2 years and 9 months’ imprisonment.  No parole date for release was set.
3. [3]
   The appellant appeals on the sole ground that a miscarriage of justice occurred because the learned trial judge failed to properly direct the jury about the element of “wilful exposure”.

Circumstances of alleged offending

4. [4]
   The particulars of the offending provided by the Crown, the respondent to this appeal, were that:^[1]

“On a date unknown between 14 November 2021 and 20 November 2021 at [a remote community in Northern Queensland] the defendant exposed himself to [the complainant], a child under 16 to an indecent act, namely he deliberately showed [the complainant] his penis at [an address in the remote community in Northern Queensland].

And [the complainant] was under 12 years.”

5. [5]
   Evidence was given by the complainant, two of her friends and two other people who were eyewitnesses.  An excerpt of the summary of the complainant’s evidence from the trial judge’s summing up is as follows:^[2]

“In summary, the [complainant’s] evidence is this. In her first conversation with the police, which occurred on the 24^th of November 2021, she said, in summary, that [the appellant] showed her his private, which she said was his penis, when she and the other girls went to his house to ask for an Allen key to fix a scooter.

In a nutshell, that is the effect of her evidence, although she was asked multiple times to say what happened. She said that she went from [friend 1’s] house to [the appellant’s] house to fix the handlebar on the scooter with an Allen key, that he tightened the handlebar, that later it got loose again when [friend 1] was riding it, that she asked him for the Allen key again and he tightened it. She said he stripped off again. He was touching his private part. As soon as they were walking away, he sang out to them, and they just said ‘No’. She said this happened ‘last week after school one day.’ The date she – remember she spoke to police on the 24^th of November – sorry. She spoke to police on the 24^th of November 2021. The date range alleged is from the 14^th of November to the 20^th of November, which puts the offence within the range that she describes.

The complainant said that ‘after he used the Allen key to tighten it, he came outside naked and was asking us to go in the house with him,’ and they said no. He wanted them to go in the house and they said no, and they ended up running away. She later said the scooter got loose and then he tightened it, but before, he was touching his private part, his penis. Later, she said while she was at the café, she saw him come out naked with no clothes. She said when nobody can see him, he showed his private to them and they said no, that’s inappropriate to look at. She said he was being rude to them, showing his private part, and that she saw his private part. She said it was yucky. She said they told him to put some clothes on, but he wouldn’t listen. She said his private was ‘ugly, like, yucky.’ She was not sure what day it was, but she thought it was Wednesday.”

6. [6]
   Evidence was given by both of the complainant’s friends.  Friend 1 had been with the complainant at the time of the offending and gave evidence that the appellant had come out naked when they were playing at the café but said that she did not see his penis.  Friend 2 was said to have remained near the river crossing while the complainant and Friend 1 went to fix the scooter.
7. [7]
   Two older girls who lived next to the appellant’s house had seen two younger girls come up to the appellant’s house twice and ask for a screwdriver.  They said he had clothes on at the time.  However, both sisters gave evidence that when they went for a walk up the hill, they saw that the appellant was naked from the back.
8. [8]
   There were inconsistencies in the evidence given by the complainant and the other witnesses, but they do not need to be canvassed for the purposes of this judgment.

Directions in the Summing up

9. [9]
   The relevant elements of the offence are that:

   1. there was an indecent act by the defendant;
   2. the defendant wilfully exposed the complainant to that indecent act;
   3. wilfully exposing the complainant to that indecent act was unlawful; and
   4. the complainant was under 12 years.
10. [10]
    In her summing up, the trial judge explained that the first two elements were the elements which were really in dispute at trial and that the third and fourth elements were not really in dispute.
11. [11]
    It is appropriate to extract the summing up with respect to the second and third elements that was provided to the jury:

“If you are satisfied of that beyond reasonable doubt, then you go on to consider the second element, that is, that the defendant wilfully exposed the complainant to that indecent act.

‘Wilfully’ means that the defendant deliberately or intentionally exposed the complainant to the indecent act or that the defendant deliberately did the indecent act aware at the time that the results charged – ie, exposing the complainant to that act – was a likely consequence of the doing of the indecent act, and yet he recklessly proceeded regardless of that risk.

‘Exposed’ is an ordinary English word and it means ‘showed’.

As I said earlier, intended – you have to consider whether the defendant intentionally or deliberately exposed the child to his penis. In this legal context, those words carry their ordinary meaning. In ascertaining the defendant’s intention, you are drawing an inference from facts which you find established by the evidence concerning his state of mind.

Intention may be inferred or deduced from the circumstances in which the event is said to have occurred and from the conduct of the defendant before, at the time or, or after he did the specific act which forms the basis for the charge.

Because the second element requires the Crown to prove that the defendant wilfully exposed the complainant to the indecent act, the Crown must prove beyond reasonable doubt that the defendant deliberately exposed the child to his penis in the circumstances in which she says it occurred, that is, he meant to produce that result by his conduct.

As I said earlier, in this case, there is no evidence of the defendant’s state of mind, so you have to consider that issue by looking at the evidence about the circumstances in which it occurred, and you can take into account the evidence from a number of witnesses about what the defendant, [the appellant], did or said before, during or after that event.

When you are considering whether he exposed the child to his penis wilfully, deliberately or intentionally, and you consider the other pieces of the evidence upon which you could draw such an inference, if any, you must bear in mind that those  pieces of evidence don’t prove a fact directly, but might point to its existence. Remember earlier when I talked about drawing inferences and direct evidence? This is an example of where you would need to consider different pieces of circumstantial evidence that can be relied upon not as proving his intention directly, but instead as pointing to its existence. When you consider whether he did this wilfully, deliberately or intentionally, it is necessary that his guilt should not only be a rational inference, but also the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty.

Moving on to the third element of the offence, it is that the defendant wilfully exposed the complainant – that wilfully exposing the complainant to that indecent act was unlawful. Wilfully exposing a child under 16 years of age to an indecent act will be unlawful unless it is authorised, justified or excused by law or is the subject of some legal defence. In this case, there is no authorisation, justification, excuse or defence raised on the evidence. Although Defence counsel has submitted that it may be open for you to infer that there was some non-intentional exposure, it is a matter for you, members of the jury, to consider that on the evidence. But it is not a case where there is evidence saying, ‘Yes, he did the act, but there was some lawful excuse for it.’” (emphasis added).

12. [12]
    The jury were also provided with a document by her Honour identifying the offence and elements of the offence. Relevantly, it stated as follows:^[3]

“ELEMENTS OF THE OFFENCE:

The prosecution must prove each of the following beyond reasonable doubt:

1. there was an indecent act by the defendant.

It is a matter for you to determine if that act is indecent. ‘Indecent’ bears its ordinary everyday meaning; that is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.

2. the defendant wilfully exposed the complainant to that indecent act.

‘Wilfully’ means that the defendant deliberately or intentionally exposed the complainant to the indecent act (or that the defendant deliberately did the indecent act, aware at the time that the result charged (i.e. exposing the complainant to that act) was a likely consequence of the doing of the indecent act and yet recklessly proceeded regardless of that risk). ‘Exposed’ is an ordinary English word and means ‘showed’.

3. wilfully exposing the complainant to that indecent act was unlawful.

Wilfully exposing a child under 16 years of age to an indecent act is unlawful unless it is authorised, justified, or excused by law, or is the subject of a specific legal defence.

There is no authorisation, justification, excuse or defence raised on the evidence.

4. that the complainant was under 12 years.

This is not in dispute. See the admissions Ex 18.”

Complaint as to directions given

13. [13]
    The appellant contends that her Honour gave a modified direction from the Bench Book in respect of the third element.  The relevant part of the Bench Book stated:

“That wilfully exposing the complainant to that indecent act was unlawful.

The third element is concerned with proof of unlawfulness.  Wilfully exposing a child under 16 years of age to an indecent act is unlawful unless authorised, justified or excused by law, or is the subject of a specific legal defence.”

14. [14]
    According to the appellant, the modified portion of the direction was erroneous because it should have been incorporated in the second element namely, whether the appellant wilfully exposed.  In particular, the appellant complains that the words “although Defence counsel has submitted that it may be open for you to infer that there was some non-intentional exposure” undermines the assistance provided to the jury about how to assess the appellant’s requisite intention.
15. [15]
    The appellant contends that it elevated the test that the appellant had to satisfy because it was essentially couched in terms of the defence.  The appellant submits the modified direction was necessary but it should have occurred under the second element and not the third element and it should have been expanded to add reference from the defendant’s closing address that the exposure may have been through inadvertence.  In closing submissions at trial, the defence queried “So did something else happen through inadvertence, rather than the conduct – a course of conduct designed to expose himself deliberately to the complainant?”^[4] On that basis, the appellant before this Court submitted that the trial judge ought to have given a direction in the following terms:

“… the defence case is that there was no evidence that the defendant deliberately pulled his shorts down in the presence of children. The defence submits there was evidence of the defendant going in and out of the house on a number of occasions leaves open the inference that an exposure may have been through inadvertence.”

16. [16]
    The respondent submits that the jury could not have been distracted by the modification of the direction with respect to the third element, having been instructed by the jury handout, “Elements of the Offence”, as to what each element required and being informed that only the first two elements were in dispute.  According to the respondent, the impugned direction did no more than remind the jury that, although there was no excuse or justification that constituted a defence, the defence had raised as part of its defence that it was open for them to infer some non-intentional exposure by the appellant.  The respondent contends that the jury in those circumstances would not have been left confused, particularly when regard was had to the directions as a whole, where comprehensive directions were given in relation to the second element as well as circumstantial evidence, which was particularly relevant to the second element.
17. [17]
    The respondent also contends that no re-direction was sought in relation to the direction by the defence counsel, which it contends it is explicable by the fact that defence counsel did not think the jury was misled by the direction given.  In any event, as the respondent contends, the onus is on the appellant to show that there has been a miscarriage of justice.^[5]

Was there a miscarriage of justice?

18. [18]
    The gravamen of the appellant’s argument is that the learned trial judge did not, in giving the jury trial directions in relation to element two, explain the alternative hypothesis or possible inference, namely that the appellant had exposed himself to the complainant inadvertently, which the jury must be satisfied the Crown had excluded in proving that the appellant had intentionally exposed himself beyond reasonable doubt.  The appellant further contends that making the reference to non-intentional exposure in discussing the third element, which was not in issue, would have caused the jury confusion and suggested that was a matter being raised by way of defence.
19. [19]
    In considering whether the direction has resulted in a miscarriage of justice, Sofronoff P (with whom Morrison JA and Boddice J agreed) stated in R v SDQ:^[6]

“The relevant principle is well settled. No miscarriage of justice will have occurred in a case like the present unless the appellant demonstrates that ‘it is reasonably possible’ that the direction that was given, and the evidence that was led, ‘may have affected the verdict’. In considering these questions, the Court must have regard to the gravity of the error misdirection or significance of the inadmissible evidence as well as the strength of the case against the appellant.” (footnotes omitted).

20. [20]
    I do not consider that the jury could have reasonably been distracted or misled by the directions or that any miscarriage of justice occurred in respect of the directions given for the following reasons.
21. [21]
    First, her Honour had made clear prior to giving the directions as to the second and third elements of the offence that the third and fourth elements were not matters in dispute in the trial.  Rather, what was in dispute were elements one and two and whether there was an indecent act by the defendant and whether he wilfully exposed the complainant to that indecent act.  That was also made clear in the elements document, “Elements of the Offence”, provided by the trial judge to the jury.
22. [22]
    Secondly, her Honour had explained that the question of whether the appellant had exposed his penis wilfully or intentionally required consideration of the defendant’s state of mind and the drawing of inferences by reference to the circumstances in which it occurred.  Her Honour referred to her earlier direction about circumstantial evidence.  When giving that earlier direction, her Honour specifically linked the direction as to circumstantial evidence to the second element and stated that it may be particularly relevant in considering the second element of the offence, stating inter alia “you will have to consider whether you’re satisfied that if he did show [the complainant] his penis, he did so deliberately or intentionally, because you need to find that to find it was wilful” and that “you might have to consider whether you can infer from other pieces of evidence whether he did that act deliberately or intentionally”.^[7]  The alternative inference consistent with innocence of which the jury had to be satisfied was not one which required specific explanation.  If the jury were satisfied that exposure had occurred, there were only two possibilities – that the appellant’s exposure was either deliberate or inadvertent.
23. [23]
    Thirdly, as contended by the Crown, the reference in the third element was to remind the jury that, notwithstanding that there was no defence that the conduct whereby the appellant exposed himself, was done with authorisation, justification or excuse, the jury should not lose sight of the defence raising that the exposure had been non-intentional.  That was clearly referable to the jury having to be satisfied of the second element.  The direction immediately followed the direction given about element two and the statement by her Honour that elements three and four were not in dispute.  The jury would have reasonably understood that the reference to non-intentional exposure was to remind the jury that was a matter raised as part of the defence’s contention even if not an authorisation justification or excuse.  That position was further made clear by the written document provided to the jury as to the elements of the offence.
24. [24]
    Fourthly, the summary of rival contentions given by the trial judge in the summing up also referred to the defence submitting:^[8]

“that it was a real question whether you could be satisfied beyond reasonable doubt whether the evidence got to the point of a deliberate exposure. He submitted that you would have a reasonable doubt as to whether the defendant walked out of the house naked and exposed himself deliberately to the complainant. He submitted that it would be different if there was evidence that the defendant deliberately pulled his shorts down in their presence. He submitted that there was not evidence of that kind. He referred to the evidence of the complainant.”

25. [25]
    While it would have been preferable for her Honour to have provided the reference to non-intentional exposure as part of the direction for the second element of the offence, the reference to it when discussing the third element caused no miscarriage of justice.  The Bench Book is not prescriptive but serves to provide assistance and guidance to trial judges in devising a summing up appropriate in a particular case “rather than establishing any inflexible or mandatory regime”.^[9]  The reference did not elevate the test the appellant had to satisfy, nor would it have created any confusion or distraction in the mind of the jury.  The directions did not suggest that the appellant had to satisfy any test.  It was clear from the directions that it was for the Crown to establish each element beyond reasonable doubt and, in particular, that the exposure was wilful.  The modified direction proposed by the appellant was not necessary under the second element.  The alternative possibility to wilful exposure was that the exposure was inadvertent or unintentional.  There were no other possibilities.
26. [26]
    In the present case, for the above reasons, when her Honour’s summing up and the directions are read as a whole, there was no reasonable possibility or a real chance that the failure to direct the jury in the manner contended by the appellant may have distracted the jury and affected the verdict of guilty.^[10]
27. [27]
    In the circumstances no miscarriage of justice occurred.

Disposition

28. [28]
    I would order that the appeal is dismissed.
29. [29]
    DOYLE AJA:  I agree with Brown JA.