R v Applebee - [2016] QDC 95

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Applebee [2016] QDC 95

PARTIES:

The Queen

(respondent)

v

Glenn Ivan Applebee

(applicant/ defendant)

FILE NO/S:

23/15

DIVISION:

Criminal

PROCEEDING:

Pre-trial hearing

ORIGINATING COURT:

District Court in Kingaroy

DELIVERED ON:

4 March 2016; ex tempore

DELIVERED AT:

Kingaroy

HEARING DATE:

4 March 2016

JUDGE:

Kingham DCJ

ORDER:

1. Application to exclude pre-text call is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – where application to exclude pretext call from evidence – where applicant alleges pretext call is unfairly prejudicial to the defendant because it is too ambiguous or equivocal – whether pretext call is unfairly prejudicial.

Evidence Act 1977 s130

HML v The Queen [2008] 235 CLR 334; BCQ [2013] QCA 388.
BBH v The Queen [2012] HCA 009 at 9

R v IE[2013] QCA 291 (11/0319), R v Caulfield [2012] QCA 204 (12/155)

COUNSEL:

H. Fong for the applicant.

P. O’Connor for the respondent.

SOLICITORS:

Legal aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent.

I will give brief oral reasons for my decision to refuse the application to exclude the pretext call.

It is conceded by defence that the pretext call is relevant and admissible. The basis upon which the Crown is seeking to lead it is twofold; firstly to rely upon the demeanour of the defendant during the telephone call as indicating his consciousness of guilt of the charges laid against him; and secondly as evidence of generalised sexual misconduct by the defendant which can be relied upon by the jury in forming its conclusion on count 1 (the charge of maintaining).

Those two bases for admissibility, appear to have been conceded by defence. The phone call is not led as an admission to any particularised charge, except in the way I’ve explained in relation to count 1.

Given those bases for relevance, a trial judge would be required to give very careful directions to the jury about how they can use the pretext call. I must proceed on the assumption that the jury will observe the trial judge’s directions on the law. The direction that is indicated in this case is that the jury could only act on the pretext call if they were satisfied beyond reasonable doubt that this generalised sexual misconduct had in fact occurred.[1]
[1] HML (2008) 235 CLR 334; BCQ [2013] QCA 388.

I note there has been no submission that there is unfairness in the circumstances of the call itself. She is certainly not in a position of dominance or authority over the defendant. I am not aware of any other unfairness in the circumstances of the call. The defendant was free to terminate the call at any time. The only basis for excluding it is the content of the call itself and whether it is so ambiguous or equivocal that it should not be admitted.

Defence has revised arguments based on…

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 Applebee

Details

AGLC: R v Applebee [2016] QDC 95
Case: [2016] QDC 95
Decision Date: 4 March 2016; ex tempore

CaseChat Overview and Summary

The case of R v Applebee before the court involved a criminal proceeding where the defendant sought to exclude a pre-text call from being admitted as evidence. The defendant argued that the call was unfairly prejudicial as it was ambiguous or equivocal, potentially misleading the jury. The court was tasked with determining whether the call's prejudicial effect substantially outweighed its probative value.

The central legal issue before the court was whether the pre-text call was so prejudicial that it should be excluded from the evidence. The court considered the balance between the probative value of the evidence and any prejudicial effect it might have on the defendant. It also examined whether the call was ambiguous or equivocal to an extent that it could unfairly prejudice the defendant's case.

The court found that the pre-text call, while potentially ambiguous, was not so prejudicial as to be excluded. It determined that the probative value of the call outweighed its prejudicial effect, and that the call could be clarified through proper questioning and context. The court thus refused the application to exclude the call from the evidence.

In light of the above, the court refused the application to exclude the pre-text call from the evidence. This decision allows the call to be presented to the jury for their consideration, subject to the rules of admissibility and any other relevant legal principles.

Orders

Orders of the court

1. Application to exclude pre-text call is refused.

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 Applebee [2016] QDC 95
PARTIES:	The Queen (respondent) v Glenn Ivan Applebee (applicant/ defendant)
FILE NO/S:	23/15
DIVISION:	Criminal
PROCEEDING:	Pre-trial hearing
ORIGINATING COURT:	District Court in Kingaroy
DELIVERED ON:	4 March 2016; ex tempore
DELIVERED AT:	Kingaroy
HEARING DATE:	4 March 2016
JUDGE:	Kingham DCJ
ORDER:	1. Application to exclude pre-text call is refused.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – where application to exclude pretext call from evidence – where applicant alleges pretext call is unfairly prejudicial to the defendant because it is too ambiguous or equivocal – whether pretext call is unfairly prejudicial. Evidence Act 1977 s130 HML v The Queen [2008] 235 CLR 334; BCQ [2013] QCA 388. BBH v The Queen [2012] HCA 009 at 9 R v IE[2013] QCA 291 (11/0319), R v Caulfield [2012] QCA 204 (12/155)
COUNSEL:	H. Fong for the applicant. P. O’Connor for the respondent.
SOLICITORS:	Legal aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent.