GBB v The Queen

The case of GBB v The Queen involved an appeal by the defendant against a conviction for sexual intercourse with a child under 10 years old. The complainant, who was the defendant’s half-sister, initially made a complaint to the police but later retracted the allegations during cross-examination in court. The trial was conducted before a judge alone, who found the complainant’s evidence unreliable but did not inform the defence counsel of this finding during the cross-examination. The defendant, who was a young offender with intellectual disabilities at the time of the offence, was sentenced to a custodial term. The appeal centred on whether the trial was procedurally fair, and whether the sentence was appropriate given the defendant’s age and vulnerabilities.

The court was required to determine if the trial was procedurally unfair due to the judge's failure to inform the defence of the complainant’s unreliable evidence during cross-examination. Additionally, the court had to assess if the sentence was appropriate considering the defendant’s age, intellectual disabilities, and the principles of denunciation and general deterrence. The central issue was whether the judge’s determination of the complainant’s evidence as unreliable, made without informing the defence, constituted a breach of procedural fairness, and whether the sentence imposed adequately balanced the need for denunciation with the defendant’s vulnerabilities.

The court held that the trial was procedurally unfair as the judge’s failure to inform the defence of the unreliability finding during cross-examination deprived the defendant of a fair opportunity to challenge the evidence. The court found that this omission was significant enough to potentially affect the outcome of the trial, thus constituting a procedural unfairness. Regarding the sentence, the court noted that while denunciation was an important aspect of sentencing, the judge must also consider the offender's vulnerabilities. The court concluded that the sentence did not adequately reflect the defendant’s intellectual disabilities and age, leading to a partial miscarriage of justice.

Consequently, the court quashed the conviction and ordered a retrial, emphasising the importance of procedural fairness in criminal trials. The court also directed the retrial judge to consider the defendant’s intellectual disabilities and age in determining an appropriate sentence, ensuring that any new sentence would appropriately balance the principles of denunciation and general deterrence with the defendant’s vulnerabilities.