R v Babsek - [1998] QCA 116

IN THE COURT OF APPEAL	[1998] QCA 116
SUPREME COURT OF QUEENSLAND

C.A. No. 396 of 1997

Brisbane

[R v. Babsek]

THE QUEEN

CAROLINE ANGELA BABSEK

Appellant

Davies J.A.
McPherson J.A.

Moynihan J.

Judgment delivered 2 June 1998.

Reasons for judgment of Moynihan J., separate joint reasons for judgment of Davies and McPherson JJ.A. concurring as to the order made.

APPEAL AGAINST CONVICTION ALLOWED AND NEW TRIAL ORDERED.

CATCHWORDS: CRIMINAL LAW - Murder - Appeal against conviction - relevance and admissibility of evidence of whether appellant was violent towards deceased - hearsay - need for evidence to found experts’ opinion - battered wife syndrome - need for evidence to connect appellant with deceased’s injuries - whether appellant was deprived of a fair chance of acquittal.

Counsel:	Mrs D.J. Richards for the appellant Mrs L.J. Clare for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	12 February 1998

JOINT REASONS FOR JUDGMENT - DAVIES AND McPHERSON JJ.A.

Judgment delivered 2 June 1998

Having considered the reasons of Moynihan J., we have decided that the appeal

should be allowed and the conviction and verdict set aside. There should be a new trial.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 2 June, 1998

INTRODUCTION

Caroline Angela Babsek appeals against her conviction on 26 September 1997 in the Circuit Court in Cairns for the murder of Simon De Luca. The evidence was to the effect that the appellant and De Luca had lived in a relationship for a number of years and had had a son, Drew, who was aged two or three. At the time of De Luca’s death, they had been separated for some weeks. The death occurred when the deceased went to the home at Mission Beach where the appellant and Drew were living. He wanted to see Drew. He and Drew went to the vicinity of the Mission Beach boat ramp. The appellant went there in her car. She and Drew returned to the house in the car while the deceased followed on foot.

As a consequence of formal admissions made on the appellant’s behalf at the commencement of the trial, it was not in issue that at approximately 9.35 a.m. on 18 May 1996 at her residence at 36 Wall Street Mission Beach, the appellant discharged a bullet from a .22 rifle shooting De Luca in the head as a consequence of which he died. The trial, nevertheless, went into a fourth week, 46 witnesses were called and there were 77 exhibits. The appellant called and gave evidence and the case went to the jury on issues of intent, accident, self-defence and provocation.

THE GROUNDS OF APPEAL

The first of the two grounds in the notice of appeal filed, that the summing-up lacked balance, was not pursued. The second was that the trial judge “failed to allow the expert medical witnesses to relay information from the appellant upon which they had relied but which was not…

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 Babsek

Details

AGLC: R v Babsek [1998] QCA 116
Case: [1998] QCA 116
Decision Date: 2/06/1998

CaseChat Overview and Summary

The case of R v Babsek involved Caroline Angela Babsek, who was convicted of the murder of Simon De Luca. Babsek appealed against her conviction on the grounds that the trial judge failed to allow expert medical witnesses to relay information from her that was not in evidence at the trial, and that she was denied a fair trial by the admission of inadmissible and prejudicial evidence in the prosecution case. The appeal was heard in the Supreme Court of Queensland. The court found merit in the appeal and allowed it, ordering a new trial. The court found that the trial judge erred in restricting the expert witnesses from relaying information that was not in evidence at the trial, and that the appellant was denied a fair trial by the admission of inadmissible and prejudicial evidence. The court held that the evidence in question was prejudicial to the appellant and went to her credibility and the issues of intent, self-defence, and provocation. The court concluded that the appellant lost a fairly open chance of acquittal due to the inadmissible and prejudicial evidence, and therefore the verdict should be set aside and a new trial ordered.

Orders