Background
LBQ was tried in the District Court at Mackay on three charges arising from Facebook Messenger communications sent to an account associated with a 15-year-old complainant. Count 1 alleged using electronic communication to procure a child under 16 to engage in a sexual act. Counts 2 and 3 alleged indecent treatment of a child under 16 by sending videos depicting indecent acts.
The appellant admitted sending the messages and videos, but contended that he believed he was communicating with the complainant’s adult mother rather than the complainant. The jury acquitted him on count 1 but convicted him on counts 2 and 3. He received concurrent four-month custodial sentences, which had been served by the time of the appeal.
The Court’s Holding
The Court of Appeal rejected the argument that the convictions were unreasonable because they were inconsistent with the acquittal on count 1. The procurement count required proof of an additional intention to procure the complainant to engage in a sexual act. A reasonable jury could have acquitted on that distinct element while convicting on the indecent-treatment counts.
However, the appeal succeeded because the trial judge did not adequately direct the jury on the statutory mistake-of-fact defence in s 24(1) of the Criminal Code (Qld). Evidence raised the possibility that LBQ honestly and reasonably believed the videos were being sent to the complainant’s adult mother. The jury should have been told that the Crown had to disprove that belief beyond reasonable doubt and that, if it was not disproved, the “wilfully exposed” element of counts 2 and 3 was not established. The omission was material and caused a miscarriage of justice.
Key Takeaways
- An acquittal on a procurement charge was not logically inconsistent with convictions on related indecent-treatment charges because the procurement offence had additional elements.
- Where the evidence raises an honest and reasonable mistake about a relevant state of affairs, s 24(1) must be properly explained to the jury.
- The Crown bears the burden of disproving an available mistake-of-fact defence beyond reasonable doubt.
Why It Matters
The decision underscores that directions identifying a factual issue are not necessarily enough. Where mistake of fact is raised, the jury must be instructed on the legal effect of the defence and on the prosecution’s burden to negate it.
The Court allowed the appeal, set aside the convictions on counts 2 and 3, and ordered a new trial. It did not enter acquittals; whether to proceed with the retrial was left to the prosecuting authority.