R v Ansell & Bradbury - [2022] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Ansell & Bradbury [2022] QDC 148

PARTIES:

THE QUEEN

V

JAKE EDWARD ANSELL

(First Defendant)

COREY JOHN BRADBURY
(Second Defendant)

INDICTMENT NO:

184/2019

DIVISION:

Criminal

DELIVERED ON:

14 June 2022 (ex tempore)

DELIVERED AT:

Bundaberg

HEARING DATE:

10, 13, 14 June 2022

JUDGE:

Barlow QC DCJ

ORDERS:

The proceedings on the indictment be permanently stayed

CATCHWORDS:

CRIMINAL LAW –PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS –evidence of the complainant’s telephone records was downloaded by the police and subsequently deleted – the evidence likely included material relevant to defences – whether directions to the jury would be sufficient to counteract prejudice – whether the defendants would be able to receive a fair trial

Criminal Code 1899 (Qld) s 590AB

R v Juides (Unreported, Supreme Court of Queensland (North J), indictment 6/2021, 25 May 2022), followed
R v Edwards [2009] HCA 20, 83 ALJR 717 distinguished
Walton v Gardiner [1993] 177 CLR 378, applied

COUNSEL:

C Ahern for the Crown

A Hoare for the first defendant

E Whitton for the second defendant

SOLICITORS:

The Office of the Director of Public Prosecutions

Suthers George Lawyers for the first defendant

Dwyer Criminal Law for the second defendant

[1] The defendants, who are each charged with two counts of rape of the same complainant on the same occasion, have, during the course of the complainant’s evidence, made an application for a permanent stay of the proceedings against them, on the ground that evidence has been lost which could have been very relevant to their defence. In fact, the loss of the evidence was a deliberate decision of the investigating officer which, the defendants submit, has caused them substantial prejudice. As well, the defendants submit that the conduct of the investigating officer in deliberately destroying forensically relevant material is an indication of some impropriety by that officer, which should weigh in favour of the court permanently staying the proceedings as being unfair to the defendants.
[2] The allegations of the prosecution are that the defendants, who were camping near where the complainant and other friends of hers were camping, engaged in sexual acts with her involving penetration both of her vagina and her mouth by each defendant, at a time when she was unconscious and, therefore, incapable of giving consent. The complainant’s evidence is that she was very drunk and she had smoked some cannabis, which she had never done before and that, as a result, she was happy, she was enjoying herself in her social interaction with the defendants and others, but when she went to urinate behind the bushes near the beach where they were camping, she felt tired and dizzy and she lay down. Then she woke to find one defendant’s penis in her vagina and the other’s penis in her mouth. She said she has very limited recollections of the night but that’s one of her clear recollections. This is…

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 Ansell & Bradbury

Details

AGLC: R v Ansell & Bradbury [2022] QDC 148
Case: [2022] QDC 148
Decision Date: 14 June 2022

CaseChat Overview and Summary

In the case of R v Ansell & Bradbury, the defendants faced charges in the County Court of Victoria. The central dispute revolved around the alleged mishandling of the complainant's telephone records by the police, which were downloaded and subsequently deleted. The deleted records potentially contained information relevant to the defendants' defences, raising concerns about the fairness of the trial process. The defendants sought a stay of proceedings, arguing that the deletion of the records constituted an abuse of process and would prevent them from receiving a fair trial.

The court was required to determine whether the deletion of the telephone records by the police constituted an abuse of process and, if so, whether this abuse was so severe that it would deny the defendants a fair trial. This involved examining the potential impact of the deleted records on the defendants' ability to mount an effective defence and whether any directions to the jury could sufficiently mitigate the prejudice caused by the loss of evidence.

The court found that the deletion of the telephone records by the police was indeed an abuse of process. The records were likely to have contained material that was relevant to the defendants' defences, and their deletion significantly prejudiced the defendants' ability to prepare and present their case. Despite considering whether directions to the jury could counteract the prejudice, the court concluded that the prejudice was too substantial to be remedied. Consequently, the court decided that the defendants would not be able to receive a fair trial under the circumstances.

The court ordered that the proceedings on the indictment be permanently stayed. This decision effectively brought the criminal proceedings to a halt, recognising the severe impact of the deleted evidence on the defendants' right to a fair trial.

Orders

Orders of the court

The proceedings on the indictment be permanently stayed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Ansell & Bradbury [2022] QDC 148
PARTIES:	THE QUEEN
V
JAKE EDWARD ANSELL (First Defendant)
COREY JOHN BRADBURY (Second Defendant)
INDICTMENT NO:	184/2019
DIVISION:	Criminal
DELIVERED ON:	14 June 2022 (ex tempore)
DELIVERED AT:	Bundaberg
HEARING DATE:	10, 13, 14 June 2022
JUDGE:	Barlow QC DCJ
ORDERS:	The proceedings on the indictment be permanently stayed
CATCHWORDS:	CRIMINAL LAW –PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – ABUSE OF PROCESS –evidence of the complainant’s telephone records was downloaded by the police and subsequently deleted – the evidence likely included material relevant to defences – whether directions to the jury would be sufficient to counteract prejudice – whether the defendants would be able to receive a fair trial Criminal Code 1899 (Qld) s 590AB R v Juides (Unreported, Supreme Court of Queensland (North J), indictment 6/2021, 25 May 2022), followed R v Edwards [2009] HCA 20, 83 ALJR 717 distinguished Walton v Gardiner [1993] 177 CLR 378, applied
COUNSEL:	C Ahern for the Crown A Hoare for the first defendant E Whitton for the second defendant
SOLICITORS:	The Office of the Director of Public Prosecutions Suthers George Lawyers for the first defendant Dwyer Criminal Law for the second defendant