R v LBI[2025] QCA 104

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bradley JA.
2. [2]
   BRADLEY JA:  On 8 August 2024, a jury found the appellant guilty of nine counts of sexual offending against a child.  These were one count of engaging in conduct in relation to a child under 16 years with intent to facilitate the procurement of the child to engage in a sexual act, two counts of indecent treatment of the child, five counts of unlawful carnal knowledge of the child, and one count of rape of the child.  He was convicted of these nine offences.  The jury found the appellant not guilty of one other count of carnal knowledge of the child.
3. [3]
   The Crown case was that the appellant had committed the procurement offence between 1 June 2021 and 1 January 2022.  Over this period, the complainant was aged 11 and 12.  The appellant was alleged to have committed each of the other offences between 30 September 2021 and 1 February 2022, when the complainant was aged 12.  The appellant was 28 years of age during the whole of these periods.
4. [4]
   The appellant appealed against the convictions on the ground that a miscarriage of justice arose because the learned trial judge had failed to direct the jury adequately or at all, in relation to the evidence of text messages exchanged between the appellant and the complainant child on 24 January 2022 (the 24 January messages).

The uncontentious facts

5. [5]
   The appellant lived outside a regional town, with his partner and stepdaughter (his partner’s child).  The complainant lived with her father and younger brother in a house on a neighbouring block.  The complainant’s mother passed away in early 2021.  From that time the complainant’s father relied upon neighbours, including the appellant and the appellant’s partner, to drive the complainant to and from school.
6. [6]
   In June 2021, the appellant initiated private contact with the complainant on Snapchat, an encrypted social media platform.  The appellant knew these things about Snapchat:

   1. A message, photograph or video sent by Snapchat disappears very soon after it is sent unless the sender or recipient saves it.
   2. If a recipient saves a message, photograph or video, then the sender is notified, and the item is also saved to the sender’s account.
   3. A sender is also notified if the recipient takes a screen shot of anything sent by Snapchat.
7. [7]
   Over time, the appellant had more frequent contact with the complainant.  The appellant collected the complainant alone from dance lessons once a week and drove her home.  The complainant started visiting the appellant’s house.  The complainant occasionally slept overnight at the appellant's house.  According to the appellant’s partner, towards the end of 2021 the complainant was sleeping over nearly every weekend and, when her father had to go out of town, she slept over during the week.  Over the school holidays, the complainant stayed at the appellant’s house most of the time.
8. [8]
   On 15 January 2022, the complainant began to make disclosures to others about alleged offending by the appellant.  She made disclosures to the appellant’s partner and stepdaughter, to a friend of her late mother, to her cousin, to a friend and the friend’s older sister, and to her aunt.
9. [9]
   On 24 January 2022, the complainant and the appellant exchanged the 24 January messages.
10. [10]
    On about 31 January 2022, the complainant showed her father some messages and suggested he call her late mother’s friend (to whom she had made some disclosure).  Her father contacted the local police.  Over 31 January and 1 February 2024, the complainant met and spoke with police three times.  In her two initial interactions with police, the complainant did not disclose any alleged offending by the appellant or repeat what she had disclosed to others.  At the third meeting, the complainant did so in respect of the procuring offence, the two indecent dealing offences, three of the carnal knowledge offences and the rape.
11. [11]
    On 2 February 2022, police arrested the appellant and charged him with committing sexual offences against the complainant.
12. [12]
    On 8 October 2023, police again interviewed the complainant.  She told police about other alleged conduct by the appellant, which formed the basis for three further carnal knowledge offences.

The trial

13. [13]
    The trial took place over four days, starting on 5 August 2024.
14. [14]
    Recordings of the complainant’s interviews on 1 February 2022 and 8 October 2023 were played at the trial.
15. [15]
    The jury were also shown the complainant’s pre-recorded evidence, which had been taken at a hearing on 18 March 2024.  In it, the complainant gave evidence of each of the alleged offences.  The complainant also said she and the appellant were the two persons depicted in certain photographs, videos, and screenshot photographs tendered at the pre-recorded hearing.  Some of these showed two persons engaged in sexual activity.  The Crown retendered photographs and videos in the trial.  The Crown also tendered photographs taken inside the appellant’s house and still images of the appellant taken from videos recorded on police body-worn cameras.  The complainant said she exchanged the 24 January messages with the appellant on that day.  Photographs of those messages, and other Snapchat messages and screenshots were also tendered.
16. [16]
    Recordings of a 10 February 2022 police interview with the appellant’s stepdaughter and a 15 March 2022 interview with the complainant’s friend were shown to the jury at the trial.  The appellant’s stepdaughter confirmed the details of the complainant’s preliminary complaint to her.  She also gave evidence of the complainant showing her two videos of the appellant engaged in sexual activity with the complainant.  She identified the appellant and the complainant as the only two people in each video and described the appellant’s sexual acts in each.  The complainant’s friend confirmed the details of the complainant’s preliminary complaint to her.
17. [17]
    The complainant’s father, her aunt, her friend’s older sister, her dance teacher, and the appellant’s partner gave evidence in the Crown case.  Their evidence was variously about the dealings between the appellant and the complainant, certain events and occasions mentioned by the complainant in her pre-recorded evidence, and the complainant’s preliminary complaints.
18. [18]
    A police officer gave evidence that, on 1 February 2022, he had taken photographs of the 24 January messages on the screen of the complainant’s mobile phone.  He identified these photographs.  He had also taken video recordings of videos he played on the complainant’s phone that day.  The Crown prosecutor tendered these, without objection from the appellant’s defence counsel.
19. [19]
    The appellant gave evidence.  His defence counsel asked the appellant about the 24 January messages, the subjects he referred to in the messages, the context in which he sent them, and what he meant by them.  Under cross-examination, the appellant identified the messages from him to the complainant and those from the complainant to him, distinguishing each category by the colour of the text and background.
20. [20]
    In his evidence about the 24 January messages:

    1. The appellant denied that he was referring to videos the complainant had testified showed the appellant and the complainant engaging in sexual activity in his demands that the complainant, “delete absolutely everything that you have of me right this minute!”, “delete everything I mean everything! Including the [sic] the videos you sent her! Delete it all!”, “I WANT EVERYTHING F***ING GONE”, and “Well f***ing delete it! Them all”.  The appellant said he was only referring to photographs the complainant had taken of him.
    2. He also denied that his description of the complainant having “VIDEOS AND SHIT THAT’S SO F***ING DISGUSTING AND DISTURBING” was a reference to videos of him having sex with the complainant.  He said he meant that it was “just weird and creepy” that the complainant had videos and photos of him in his home.
    3. He was not sure what his reference to the complainant probably trying to “use as blackmail” was about.
    4. When asked what he was referring to when he wrote that the complainant had “destroyed my life”, he said it was, “Everything she’d done”, but denied it was her having the videos, which the complainant had said showed the appellant and her in sexual activity.
    5. The appellant said he had sent the 24 January messages in response to the complainant sending a long message to his partner.  That long message was also in evidence.  It was dated 30 January 2022, six days after the 24 January messages were exchanged.  Later, he accepted he had not seen the long message when he sent the 24 January messages.
    6. The appellant said he wrote that he might as well “go [to] the cops rather be hanging from a ceiling then [sic] dealing with this f***ing bullshit”, because he “wasn’t thinking at the time” and he knew “the outcomes” of the long message, which had not yet been sent.  He said he knew it was “an offence to have sex with a 12-year-old girl”.  He denied it was about offending against the complainant that he had written he would “go [to] the cops”.
    7. When asked about writing that he did not care anymore and was going to tell his partner “the truth”, he said he meant that he was going to tell his partner that he and the complainant “were just talking”, and in writing “Then gunna [sic] go away for a long time”, he meant “Just be in my own space.  I didn’t mean jail or nothing like that.”  He denied he thought he was going to go away for a long time because he had been having sex with the complainant.
21. [21]
    After the defence case was closed, in the absence of the jury, the Crown prosecutor raised with the trial judge a direction to the jury about using the 24 January messages as an admission that there were “videos that [the appellant] was in with the complainant”.  The trial judge noted that there was “nothing in any of those messages which is an express admission to committing any offence” and ruled the evidence could not be used in the way proposed by the prosecutor.  As the jury could not use the messages as an admission, his Honour told the prosecutor there was no call for a direction about such use.  The prosecutor agreed.  Defence counsel made no comment.

The closing addresses

22. [22]
    In his closing address, the appellant’s defence counsel did not mention the 24 January messages.  The nearest reference was to “a cache of photographs” that the complainant “had been surreptitiously taking” of the appellant, which likely included the “115 f***ing photos of me” that the appellant mentioned in the 24 January messages.  Defence counsel’s address focussed on challenging the credibility and reliability of the complainant’s evidence.  He told the jury, to convict the appellant they had to accept the evidence of the complainant.  He said they should reject the complainant’s explanation that she had not kept photos of the appellant on her phone because the appellant would not let her.  He told the jury the appellant could not stop her, “Once the photos hit her phone, he can’t stop her.”  He urged the jury to reject the complainant’s evidence as that of “a 12 year old girl dealing with that obsession”.
23. [23]
    In her closing address, the Crown prosecutor sought to use the 24 January messages in three ways:

    1. First, the prosecutor told the jury the 24 January messages bolstered the credibility and reliability of the complainant’s evidence, saying they “very clearly were against the background of these things that [the complainant] has told you having actually happened, that is, being truthful”.
    2. Second, the prosecutor also took the jury through the appellant’s evidence about the 24 January messages, summarised at [20] above, to attack the appellant’s credibility.  She suggested to the jury that they would “reject” the appellant’s evidence about the messages, “put it to one side” and “come back to the prosecution evidence.”
    3. Third, the prosecutor referred to the cross-examination of the complainant in which she had said she did not save sexual photos the appellant had sent her because the appellant “controlled her” and “he wouldn’t let her save those things”.  The prosecutor suggested to the jury that they could “see some of that control” in the 24 January messages in the appellant’s “persistence and the force behind his words, ‘Delete everything.’”  The prosecutor reminded the jury “he’s a nearly 30 year old man at that point and he’s talking to a 12 year old girl.”

The summing up

24. [24]
    In summing up the trial judge told the jury:

“In this case, the prosecution accepts that in order to convict the [appellant] of any of the charges you would have to accept the essential parts of the evidence of [the complainant] beyond reasonable doubt.  There is no other evidence alone which is capable of alone proving the charges.”

25. [25]
    In giving the conventional instructions, his Honour told the jury:

“You should understand that it is not a question of your simply deciding whether or not you accept the [appellant’s] evidence to decide whether or not he is guilty. The proper approach is to understand that the prosecution bears the onus of proving the charges beyond reasonable doubt. So you do not have to believe the [appellant] before the [appellant] is entitled to be found not guilty. …If you find the [appellant’s] evidence unconvincing, set it to one side, go back to the rest of the evidence and ask yourself on a consideration of such evidence as you do accept whether you are satisfied beyond reasonable doubt that the prosecution has proved the offences.”

26. [26]
    In summarising the appellant’s evidence about the 24 January messages.  His Honour told the jury,

“He said he did message [the complainant] after he became aware of her making allegations. Although he said it was after becoming aware of the messages sent by her to [his partner], which is exhibit 11, he accepted that was sent, that is exhibit 11 was sent, after his messages to [the complainant]. It is a matter for you, but you might think that the [appellant’s] messages show he was aware of [the complainant] making allegations against him and sending messages and/or videos to [his stepdaughter], so that is what he was responding to in sending the messages to [the complainant].”

27. [27]
    Later, in summarising the Crown address, the trial judge referred to the 24 January messages, noting only that the prosecution had relied on the exchange to make the points noted at [23](a) and [23](b) above.  His Honour did not otherwise refer to any details of the messages.
28. [28]
    His Honour had already given the jury the usual direction that:

“A thing suggested by a lawyer during a witness’s cross-examination is not evidence of the fact suggested unless the witness accepted the suggestion as true. That is, the lawyer’s question is not evidence. … The evidence is instead to be found in the answer of the witness.”

29. [29]
    These parts of the summing up were in the same terms as a draft of the summing up, which the trial judge had given counsel before they addressed the jury.

The grounds of appeal

30. [30]
    For the appellant, it was submitted that the trial judge should have directed the jury that, before they could act on the statements in the 24 January messages as admissions or as confessional in effect, they needed to be certain that what the appellant said in the messages was in fact an admission and was truthful and accurate.  It was submitted that a direction in the style of that in Edwards v The Queen (1992) 173 CLR 653 was necessary because the appellant’s statements in the 24 January messages were clearly capable of amounting to admissions by conduct and being interpreted as demonstrating a consciousness of guilt.
31. [31]
    As Dalton JA said in R v WBS [2022] QCA 180:

“It is not all inculpatory post-offence conduct which will attract the need for an Edwards-type direction. When the concern is with statements, it is only deliberately untrue statements which will attract an Edwards direction, and then, only statements which are capable of being probative of guilt because they might show that the accused lied because he ‘knew that the truth of the matter would implicate him in the offence’.”^[1]

32. [32]
    Evidence demonstrating an accused’s consciousness of guilt is evidence that amounts to an admission by conduct of a charged offence.  The usual Edwards direction begins by identifying that the prosecution has invited the jury to regard particular post-offence conduct as evidence that the accused knew he was guilty of the offence.  That was not the situation at the appellant’s trial, by the time of the summing up.
33. [33]
    In this case, following his Honour’s ruling noted at [21] above, the Crown could not use the messages in that way.  With respect, the trial judge’s view that the appellant’s statements in the 24 January messages were not admissions was correct.  Despite some contrary suggestion in the respondent’s written outline, there was no challenge to his Honour’s ruling in this appeal.
34. [34]
    However, the appellant submitted that the 24 January messages “contained statements which were capable of being understood as admissions that he had committed the offences as alleged.”
35. [35]
    When the appellant gave evidence, in chief and in cross-examination, he provided explanations for some of the things he wrote in the messages.  The Crown challenged these explanations.  The best example is the appellant’s explanation that he had sent the 24 January messages in response to a long message from the complainant to his partner.  In cross-examination, the appellant accepted that the long message was sent about six days after he exchanged the 24 January messages with the complainant.  So, his explanation was apparently unreliable.  Yet, after accepting this time sequence, the appellant again relied on the later long message as the reason he had sent the 24 January messages to the complainant.  In addressing the jury, the Crown prosecutor was careful to invite the jury to reject the appellant’s explanations and regard the appellant’s evidence generally as lacking credibility.
36. [36]
    It was open to the jury to have regard to the appellant’s evidence about how he came to send the 24 January messages when assessing the reliability and credibility of his evidence.  The jury could have regarded his explanation as unreliable and not credible.  It was open to the jury to make a similar assessment of the appellant’s answers to other questions when he gave evidence.  It was not open to the jury to “jump” from an assessment that the appellant’s explanations were not reliable or credible to a finding that the appellant was guilty of the offences with which he was charged.
37. [37]
    The trial judge’s directions to the jury referred to in [24], [25] and [26] above dealt expressly with this matter.  His Honour reminded the jury of the limited use the Crown sought to make of the 24 January messages to bolster the complainant’s credit and damage the appellant’s credit.  His Honour instructed the jury that if they found the appellant’s explanations unpersuasive, they were to put them aside, and consider whether they were “satisfied beyond reasonable doubt that the prosecution has proved the offences.”
38. [38]
    In cross-examination, the appellant’s defence counsel had challenged the creditability of the complainant’s evidence about the videos and photos on the basis that she did not save them because they did not exist.  It was also open to the jury to regard the appellant’s demands in the 24 January messages that the complainant delete videos and photos as corroborating this part of the complainant’s evidence, namely her explanation that the appellant’s control over her was the reason why she had not saved the videos and photos.
39. [39]
    The appellant’s defence counsel was experienced.  He did not seek an Edwards-style direction.  He knew from the exchange at [21] above and from the draft summing up that no such direction would be given.  He made no mention of the 24 January messages in his address to the jury.  There were sound forensic reasons not to invite the trial judge to give an Edwards direction to the jury.
40. [40]
    By an Edwards direction, the trial judge would have drawn the jury’s attention to the 24 January messages, beyond the brief general summary of the (proper) use the Crown sought to make of them.  In giving such a direction, his Honour would have instructed the jury that they could use the 24 January messages as evidence of the appellant’s guilt of the charged offences only if they found that the appellant told deliberate lies in his answers in Court because he was guilty as charged and not for any other reason.  Usually, such a direction would caution the jury that the accused might have told deliberate lies as a result of panic, fear of wrongful accusation, or a consciousness of guilt of other misconduct.  None of these reasons would have had any apparent application to the appellant giving evidence at his own trial.  In the circumstances of this case, there was no other apparent reason for the appellant to lie in his evidence to the Court.

Final disposition

41. [41]
    I would order:

1. Appeal dismissed.

42. [42]
    NORTH J:  I agree with the reasons of Bradley JA and the order proposed.