R v ABB - [2013] QSC 359

SUPREME COURT OF QUEENSLAND

CITATION:

R v ABB [2013] QSC 359

PARTIES:

R

v
ABB
(Defendant)

FILE NO/S:

BS No. 500 of 2012

DIVISION:

Trial Division

PROCEEDING:

Pre-Trial Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2013

JUDGE:

Ann Lyons J

RULING:

1. Evidence of the s 93A statement of the complainant made on 23 April 2012 from page 15, line 11 to page 18, line 24 and from page 19, line 27 to page 20, line 21 of the Transcript of Police Record of Interview is excluded.

2. The reference in the s 93A statement of the complainant’s friend, made on 30 April 2012 that “and he put his finger in it” at page 10 of the Transcript of Police Record of Interview is excluded.

CATCHWORDS:

Criminal Code Act 1899 (Qld), s 590AA

Evidence Act 1977 (Qld), ss 93A, 98, 130

R v FQ [2008] QCA 68

R v ABV (2005) QDC 426

COUNSEL:

T Ryan for the Applicant/Defendant

JD Finch for the Respondent

SOLICITORS:

Howden Saggers Lawyers for the Applicant/Defendant

Director of Public Prosecutions (Qld) for the Respondent

This Application

This is an application by ABB, for a ruling pursuant to s 590AA of the Criminal CodeAct 1899 (Qld). He seeks the exclusion of certain parts of the statements of the complainant and the complainant’s friend made under s 93A of the Evidence Act 1977 (Qld) (“s 93A statements”) and the complete exclusion of the statement of Ms [D]. The Crown has agreed to the exclusion of the statement of Ms [D] and no ruling is now required in relation to that aspect of the application. The Crown, however, opposes the exclusion of any part of the other s 93A statements.

The Indictment

The applicant has been indicted on a five count indictment. The complainant, who was eight years old at the time of the alleged offences, is the daughter of the applicant’s partner.

The applicant is currently charged with the following offences;
(i)          Count 1 is engaging in sexual activity (other than sexual intercourse) outside Australia with a circumstance of aggravation. It is alleged that an act of cunnilingus occurred on a date between 30 November 2011 and 26 December 2011 when the Complainant and the Applicant were staying in a Hotel in Chicago, USA;
(ii)        Count 2 is that on a date unknown between 22 January 2012 and 6 April 2012 the applicant raped the complainant by an act of digital penetration of the Complainant’s anus;
(iii)        Count 3 is that between the same dates, the applicant unlawfully and indecently dealt with the complainant by an act of cunnilingus on the same occasion as the act, the subject of Count 2. The circumstance of the aggravation is that the child was 12 years of age and under the applicant’s care at the time.
(iv)       Count 4 is that on 17 April 2012 the applicant raped the complainant by an act…

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.

Continue reading R v ABB

Details

AGLC: R v ABB [2013] QSC 359
Case: [2013] QSC 359
Decision Date: 25 February 2013

CaseChat Overview and Summary

The matter of R v ABB came before the court in relation to a criminal charge under the Criminal Code Act 1899. The defendant, ABB, faced a charge of supplying dangerous drugs. The nature of the dispute centred on the admissibility of certain evidence obtained from a search warrant executed at the defendant’s residence. The court was tasked with determining whether the evidence, which was obtained without proper authorisation, should be excluded from the trial. The case was heard in the Queensland District Court.

The primary legal issue before the court was whether the evidence obtained from the search should be excluded under the Evidence Act 1977. Specifically, the court had to consider whether the search warrant was improperly issued, and if the evidence obtained as a result was inadmissible. The court also needed to assess whether the evidence was obtained in a manner that violated the defendant’s rights under the legislation. The court's task was to weigh the public interest in securing convictions against the need to protect individual rights and freedoms.

In delivering its judgment, the court first examined the provisions of the Evidence Act 1977, specifically sections 93A, 98, and 130. The court found that the search warrant was indeed issued without proper authorisation, leading to the conclusion that the evidence obtained was inadmissible. The court held that the unlawful nature of the search constituted a breach of the defendant's rights under the statute. In making its decision, the court referred to the precedent set in R v FQ and R v ABV, which established guidelines for the admissibility of evidence obtained through unauthorised searches. The court ruled that the evidence in question was inadmissible and ordered that it be excluded from the trial.

Orders