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Bandao v R; Bruce v R

Bandao v R; Bruce v R

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Case Copied 22 August 2018 75 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

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Medium Neutral Citation: Bandao v R; Bruce v R [2018] NSWCCA 181
Hearing dates: 23 July 2018
Date of orders: 22 August 2018
Decision date: 22 August 2018
Before: Hoeben CJ at CL at [1];
Price J at [214];
Wilson J at [215]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – five counts of non-consensual sexual intercourse – applicants acquitted of four counts but convicted of one – Crown case depended on finding of joint criminal enterprise – complainant’s evidence affected by her intoxicated state – Crown case dependent upon evidence of co-offender – conversation between witness and complainant unlawfully recorded – recorded conversation used in cross-examination of complainant – Crown provided copy of recorded conversation to complainant during her cross-examination – whether Crown’s conduct caused a substantial miscarriage of justice – whether failure to discharge jury gave rise to a substantial miscarriage of justice – whether trial judge erred in failing to grant a permanent stay of proceedings – whether verdict of jury unreasonable and cannot be supported having regard to the evidence – whether insufficient evidence to establish joint criminal enterprise – appeals dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 61
Evidence Act 1995 (NSW) – ss 27, 29, 38, 41, 43, 45, 128, 138, 165
Legal Profession Uniform Conduct (Barristers) Rules 2015
Listening Devices Act 1984 (NSW) – s 5(1)
Surveillance Devices Act 2007 (NSW) – ss 7, 11,12
Cases Cited: Calleija v R [2012] NSWCCA 37
Dhanhoa v R [2003] HCA 40; 217 CLR 1
Dickson v R [2017] NSWCCA 78
Elwood v R [2016] NSWCCA 18
Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
House v The King [1936] HCA 40; 55 CLR 499
Hughes v R [2015] NSWCCA 330; 93 NSWLR 474
Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
Kees Langelaar v R [2016] NSWCCA 143
Lee v R [1998] HCA 60; 195 CLR 594
Libke v R [2007] HCA 30; 230 CLR 559
Matthews v R [2013] NSWCCA 187
Medich v R [2015] NSWCCA 281
Nudd v R [2006] HCA 9; 80 ALJR 614
R v Birks [1990] 19 NSWLR 677
R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
R v Edwards [2009] HCA 20; 83 ALJR 717
R v MacKenzie [1996] HCA 35; 190 CLR 348
R v Stewart [2001] NSWCCA 260
R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228
R v Xie (No 4) [2014] NSWSC 500
Regina v James [1999] NSWCCA 191
Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
SKA v The Queen [2011] HCA 13; 243 CLR 400
Sepulveda v R

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCCA 181
Decision Date: 22 August 2018

CaseChat Overview and Summary

In the case of Bandao v R; Bruce v R, the applicants appealed against their convictions for non-consensual sexual intercourse, specifically five counts against the first applicant and one against the second. The applicants were acquitted of four counts but convicted of one count each. The Crown’s case relied on the establishment of a joint criminal enterprise, with the evidence of the complainant being critical, despite her intoxicated state. A significant issue arose from the use of an unlawfully recorded conversation between a witness and the complainant, which was used in the cross-examination of the complainant. Furthermore, the Crown provided a copy of this recorded conversation to the complainant during her cross-examination, raising concerns about the fairness of the trial.

The court had to decide whether the Crown's conduct led to a substantial miscarriage of justice, whether the failure to discharge the jury resulted in a substantial miscarriage of justice, and whether the trial judge erred in not granting a permanent stay of proceedings. Additionally, the court needed to determine if the jury’s verdict was unreasonable and not supported by the evidence, and whether there was sufficient evidence to establish a joint criminal enterprise. The applicants argued that the use of the unlawfully recorded conversation and the Crown’s conduct during the trial were significant errors that undermined the fairness of the proceedings.

The court found that the Crown's conduct, including the use of the unlawfully recorded conversation, did not cause a substantial miscarriage of justice. The court held that the trial judge did not err in declining to discharge the jury, and that the verdict was not unreasonable. The evidence was deemed sufficient to establish the joint criminal enterprise. Consequently, the appeals were dismissed. The court emphasised the importance of the jury's role in assessing the credibility of witnesses and the sufficiency of the evidence, concluding that the jury’s verdict was properly reached based on the evidence presented.

Orders