SUPREME COURT OF QUEENSLAND

CITATION:	R v PBJ [2022] QCA 228	
PARTIES:	R
v
PBJ
(appellant)	
FILE NO/S:	CA No 237 of 2021
DC No 725 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 11 August 2021 (Burnett DCJ)	
DELIVERED ON:	18 November 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	1 June 2022	
JUDGES:	Morrison and McMurdo and Bond JJA 	
ORDERS:	1.	As to count 3 on the indictment:
a.	allow the appeal;
b.	set aside the conviction;
c.	the appellant be retried on that count.
2.	Dismiss the appeal against conviction in relation to counts 1, 2 and 4.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted of two counts of indecent treatment of a child under 16, under care (counts 1 and 2), one count of using electronic communication to procure a child under 16 (count 3), and one count of possessing child exploitation material (count 4) – where, on count 3, the trial judge’s directions left it open to the jury to convict if satisfied that the appellant intended to procure the complainant to engage in a sexualised conversation – where the Crown concedes that this was a misdirection because a sexualised conversation could not constitute a “sexual act” in the terms of s 218A Criminal Code 1899 (Qld) – whether there was a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant contends that it was not open to the jury to be satisfied that it was he who took the photographs the subject of counts 1, 2 and 4 on the indictment – where the prosecution case was strong – whether it was open to the jury to reject the hypothesis that some other person had taken and transmitted the photographs
Criminal Code 1899 (Qld), s 218A
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited	
COUNSEL:	P J Wilson for the appellant on Ground 1 of the appeal
The appellant appeared on his own behalf on Ground 2 of the appeal
C W Wallis for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	MORRISON JA:  I agree with his Honour McMurdo JA.
[2]	McMURDO JA:  After a trial with a jury in the District Court, the appellant was convicted of four counts involving a 12 year old girl who was at the relevant time his stepdaughter.  Counts 1 and 2 alleged that the appellant (without legitimate reason) took indecent photographs of the child.  The fourth count was that the appellant possessed child exploitation material, by the possession of those two photographs on his iPad.  The remaining count (count 3) was that on a certain day, the appellant used electronic communication with an intent to procure the girl to engage in a sexual act.
[3]	The appellant appeals his convictions on counts 1, 2 and 4 on the ground that they were unreasonable verdicts.  He appeals his conviction on count 3 upon the ground of a misdirection by the trial judge.
[4]	The respondent rightly concedes that there was a misdirection on count 3, causing a miscarriage of justice such that the conviction must be set aside and a retrial ordered.  The respondent resists the appeal against the other convictions.
The relevant evidence
[5]	In September 2019, the appellant sometimes lived with a woman whom I will call K and they shared a room.  He also had his own residence nearby.  The appellant had an iPad which he sometimes allowed others, including K, to borrow.  Access to the device required a passcode, which he had shared with K.  However K said that she always sought his permission to use the device.
[6]	When K was using the iPad on one of these occasions, she found two photographs of the complainant (whom she knew) in the shower.  K immediately contacted police.  The appellant was not with K at the time.
[7]	Police found the appellant and spoke with him, before seizing the iPad.  On examining it, police located the two photographs, and they became the subject of counts 1 and 2.  Police also found the electronic communication which became the subject of count 3.
[8]	There were admissions that each photograph was taken with an iPhone 5s camera on 23 March 2019 at the appellant’s residence, and that they were saved on the iPad on the following day.
[9]	The images were part of a text-based conversation thread between a user of the iPad and a user of a mobile phone number which was registered to the appellant. The inference that the jury was asked to draw was that the appellant had captured the images on the iPhone 5s and then sent them to the iPad.  The same thread included the communication (the subject of count 3) which occurred on 5 May 2019 between the appellant and the complainant.
[10]	On 16 September 2019, the complainant was interviewed.  She denied any knowledge of the photographs being taken.  She said that sometimes she used the appellant’s iPad.  She could not recall the conversation the subject of count 3 specifically, but she told police that some conversations between them occurred with the use of the iPad.  In evidence, the complainant said that the appellant often changed the passcode on the iPad such that she had to ask him for the code when she used it.
[11]	The particulars of counts 1, 2 and 4 were straightforward.  Counts 1 and 2 alleged that the appellant was the person who took the photographs.  It was also alleged that he did so in the circumstance that he then had the complainant under his care.  The child exploitation material which was the subject of count 4 was constituted by the two photographs.
[12]	No particulars were formally provided of the prosecution case on count 3.  The relevant electronic communications occurred in the early evening.  The appellant, from his phone, was telling the complainant, who was using his iPad, that it was time to stop using the iPad on that evening.  She asked whether she could continue to do so for a little longer, and he asked what he would receive in return.  She responded that he would get “a big hug”.  This was followed by his texting, more than once, that he wanted something “other than your kisses and cuddles”.  When she said “ok I’ll cook something”, he answered “I don’t want food … you give me something”.
[13]	In her opening address, the prosecutor said to the jury:
“You will also need to consider, in relation to count 3, if the accused was procuring [the complainant] to commit a sexual act with him. … and it will be a matter for you to determine if he was procuring [the complainant] to commit a sexual act”.
[14]	In her closing address, the prosecutor said:
“Now, it’s a matter for you what you make of that conversation, ladies and gentlemen, but I suggest that it clearly had a sexual suggestion to it and had absolutely nothing to do with respect. He is asking her for specifically more than hugs and kisses. … And I suggest … that the fact he was trying to remove himself from the conversation during his interview is because he also knew that his intention was sexual in nature, and if he told the truth about it, he would be caught out. Additionally, if you accept that he took the photographs subject of count 1 and 2, then I suggest you could use that to establish he had a sexual interest in [the complainant] and, therefore, it’s more likely that this conversation was sexual in nature.”
[15]	Later in that address, the prosecutor said:
“the real issue you need to determine [is] … whether the conversation subject of count 3 was sexual in nature. … I suggest that the conversation subject of count 3 was clearly sexual in nature, and you would, therefore, accept that he was attempting to procure her to engage in a sexual act with him.”
Misdirection as to count 3
[16]	Count 3 charged an offence under s 218A of the Criminal Code, which provides in part:
“(1)	Any adult who uses electronic communication with intent to procure a person under the age of 16 years, or a person the adult believes is under the age of 16 years, to engage in a sexual act, either in Queensland or elsewhere, commits a crime.
Maximum penalty—10 years imprisonment.
…
(3)	For subsection (1), a person engages in a sexual act if the person—
(a)	allows a sexual act to be done to the person’s body; or
(b)	does a sexual act to the person’s own body or the body of another person; or
(c)	otherwise engages in an act of an indecent nature.
(4)	Subsection (3) is not limited to sexual intercourse or acts involving physical contact.
(5)	For subsection (1), it is not necessary to prove that the adult intended to procure the person to engage in any particular sexual act.”
[17]	The judge directed the jury as follows:
“The prosecution does not have to prove that the sexual act that the defendant intended to procure was sexual intercourse, or acts involving physical contact or any particular sexual act. It is not necessary for the prosecution to prove that the defendant intended to procure the person to engage in any particular sexual act. All the Crown need to prove or do, is prove beyond reasonable doubt that the defendant had the intent to procure the person to engage in a sexual act. And the sexual act does not necessarily need to be an act per se, but may enter – also engage in sexualised conversation, which is the allegation in this instance.”
(Emphasis added.)
[18]	It was no part of the prosecution case that the appellant intended to procure the complainant to engage in a sexualised conversation.  However the judge left it open to the jury to convict the appellant if they were satisfied that what he was saying in these messages was said with an intention to have her say to him things of a sexualised nature.
[19]	For the appellant, it is submitted that a “sexualised conversation” could not constitute a “sexual act”.  It is said that under s 218A, the jury should have been directed that there had to be an intention to procure the complainant to engage in a physical act, rather than a conversation.  The respondent disputes that interpretation of s 218A.  The respondent contends that a sexualised conversation could be a sexual act within s 218A, pointing to the wide terms of s 218A(3)(c).
[20]	However, it is unnecessary to resolve that legal question within this appeal.  As the respondent concedes, in any case the jury was misdirected because the prosecution case had been conducted upon the basis that the appellant intended to procure a sexual act which involved some physical contact with the complainant.  The respondent requests that the Court still provide its opinion on the question of interpretation of s 218A.  It is preferable that this Court should not answer the question of law in the abstract, rather than in another case where the specific facts of that case require the Court to do so.
Counts 1, 2 and 4
[21]	This part of the case was argued by the appellant himself.  In essence, he contends that it was not open to the jury to be satisfied beyond reasonable doubt that the photographs were taken by him or that it was he who caused them to be stored on his iPad.  That was the appellant’s argument which was put to the jury.
[22]	The function to be performed by this Court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant was guilty of these offences.
[23]	The prosecution case was a strong one.  The photographs were taken at the appellant’s residence.  They were taken on a mobile phone.  The appellant told police that he had lost his mobile phone “off the back of the truck” a day or so before his police interview.
[24]	The photographs were saved to his iPad on the following day.  It is unlikely that the appellant could have been unaware of the images on his iPad over the next six months (if he had not transmitted them); it was also unlikely that someone else would take the photographs and then transmit them to the appellant’s device with the immediate prospect that they would be detected by the appellant.
[25]	It was open to the jury to reject the hypothesis that some other person had taken and transmitted the photographs, and it was thereby open to them to convict the appellant on counts 1, 2 and 4.
Sentence
[26]	The trial judge sentenced the appellant on counts 1 and 2 to concurrent terms of 12 months’ imprisonment, to be suspended after six months with an operational period of three years.  On count 4, the judge imposed a sentence of nine months, again suspended after six months and with an operational period of 18 months.  On count 3, the appellant was sentenced to a term of six months’ imprisonment, to be followed by 12 months’ probation.  A period of eight days was declared as pre-sentence custody.
[27]	The outcome of the appeal against conviction is that the conviction on count 3 will be set aside with a retrial ordered.  If and when the appellant is retried, and he is convicted of that offence, he would be sentenced for that offence having regard to the extent to which he had already been punished for it.  The respondent submitted that it is appropriate for the Court to set aside each of the sentences.  It was said that “a complete exercise for the sentencing discretion is required”, and that “the appropriate sentences should be determined by the District Court once count 3 is finalised”.  However that was said in the respondent’s outline of argument, and as was pointed out for the respondent during the hearing, the applicant subsequently abandoned his application for leave to appeal his sentences (upon the ground that they were manifestly excessive).  Therefore, there is no basis for interfering with the sentences on counts 1, 2 and 4.
Orders
[28]	I would order as follows:
1.	As to count 3 on the indictment:
a.	allow the appeal;
b.	set aside the conviction;
c.	the appellant be retried on that count.
2.	Dismiss the appeal against conviction in relation to counts 1, 2 and 4.
[29]	BOND JA:  I agree with the reasons for judgment of McMurdo JA and with the orders proposed by his Honour.