SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
BI v The Queen (No 2)
Citation:
[2018] ACTCA 11
Hearing Date:
31 October 2017
DecisionDate:
23 April 2018
Before:
Elkaim and Bromwich JJ, Robinson AJ
Decision:
1. Leave be refused to rely upon Ground 2 (except the aspect relying on s 101 of the Evidence Act 2011 (ACT), for which no leave was required).
2. The appeal be dismissed.
3. The stay of the appellant’s sentence ordered on 10 November 2017 be discharged.
4. The appellant’s bail granted on 10 November 2017 be revoked.
Catchwords:
APPEAL – CRIMINAL LAW – whether guilty verdicts were unreasonable having regard to the evidence on the basis of inconsistency and insufficiency of evidence – whether the probative value of the tendency evidence admitted at trial significantly outweighed any prejudicial effect – asserted want of similarity of conduct for tendency evidence at trial – whether tendency objection was raised below and whether appellant accordingly requires leave to raise tendency point on appeal – appeal dismissed
[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.
Continue reading BI v The Queen (No 2)
Sign in free to access the full text
Details
AGLC
BI v The Queen (No 2) [2018] ACTCA 11
Case
[2018] ACTCA 11
Decision Date
CaseChat Overview and Summary
BI (the appellant) appealed against guilty verdicts returned by a jury in the Supreme Court of the Australian Capital Territory. The appeal concerned the reasonableness of those verdicts, given the evidence presented at trial, and specifically raised issues of evidentiary inconsistency and insufficiency. The appeal was heard by Elkaim and Bromwich JJ, and Robinson AJ.
The primary legal issues before the appellate court were whether the guilty verdicts were unreasonable, and whether the admission of certain tendency evidence at trial was lawful. This involved determining if the probative value of the tendency evidence substantially outweighed its prejudicial effect, and whether the conduct relied upon for that evidence was sufficiently similar. A preliminary issue was whether a tendency objection had been properly raised during the trial, which would affect whether the appellant required leave to argue this point on appeal.
The court determined that leave to rely on one of the grounds of appeal (Ground 2) should be refused, except for the aspect relating to section 101 of the *Evidence Act 2011* (ACT), which did not require leave. The appeal was ultimately dismissed. Consequently, the stay of the appellant's sentence, which had been ordered previously, was discharged, and the appellant's bail was revoked.
Orders
Orders of the court
1. Leave be refused to rely upon Ground 2 (except the aspect relying on s 101 of the Evidence Act 2011 (ACT), for which no leave was required).
2. The appeal be dismissed.
3. The stay of the appellant’s sentence ordered on 10 November 2017 be discharged.
4. The appellant’s bail granted on 10 November 2017 be revoked.