R v Baira - [2009] QCA 332

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baira [2009] QCA 332

PARTIES:

R
v
BAIRA, Lew James
(appellant)

FILE NO/S:

CA No 57 of 2009
SC No 37 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

30 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2009

JUDGES:

Holmes JA, Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

EVIDENCE – ADMISSIBILITY AND RELEVANCE – IN GENERAL – OTHER CASES – where appellant convicted by jury of murder – where at trial appellant conceded he unlawfully killed victim, so only issue was intent – where Crown tendered 43 photographs and a video recording of injuries to victim’s face, head, torso and limbs – whether the number of photographs and video had a prejudicial effect in excess of their probative value – whether admission of photographic and video evidence caused miscarriage of justice

CRIMINAL LAW – PROCEDURE – WITNESSES – HOSTILE WITNESSES – where a Crown witness gave evidence inconsistent with prior police statement – where witness declared hostile because his evidence was “different” from his police statement – where, as a result, Crown prosecutor cross-examined the witness and tendered his police statement – whether hostile witness ruling properly made – whether, under s 18 of Evidence Act 1977 (Qld), statement should not have been admitted – whether s 17 alone applies where witness declared hostile – whether whole statement admissible – whether trial judge should have directed jury about use of statement – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where record of appellant’s police interview tendered – where in it appellant told lies and later, after taking legal advice, refused to answer further questions – where no direction sought or given about that evidence – where trial judge invited jury to weigh appellant’s account given in his police interview – whether evidence of appellant’s refusal to answer questions properly admitted – whether jury should have been given direction about lies – whether trial judge’s direction reversed onus of proof – whether miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where evidence of appellant’s having intent to kill or do grievous bodily harm circumstantial – whether trial judge’s direction on use of circumstantial evidence adequate – whether jury could have been satisfied beyond reasonable doubt that the circumstantial evidence was only consistent with appellant’s having the necessary intent – whether murder verdict against weight of evidence

Evidence Act 1977 (Qld), s 17, s 18

McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited
Price v Bevan (1974) 8 SASR 81, applied
R v Booth (1981) 74 Cr App R 123, applied
R v Hayden…

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 Baira

Details

AGLC: R v Baira [2009] QCA 332
Case: [2009] QCA 332
Decision Date: 30 October 2009

CaseChat Overview and Summary

In the case of R v Baira, the appellant was convicted by a jury of the murder of his partner. The only issue in the trial was whether the appellant had the necessary intent to kill or cause grievous bodily harm, as he conceded to unlawfully killing the victim. The court had to consider the admissibility of extensive photographic and video evidence of the victim's injuries, the handling of a hostile witness, and the admission of certain parts of the appellant's police interview. The court was also tasked with determining whether these factors led to a miscarriage of justice.

The primary legal issues involved the balance between the prejudicial effect and the probative value of the photographic evidence, the proper handling of a hostile witness and the admissibility of their police statement, and the consequences of admitting certain parts of the appellant's police interview without a direction to the jury. The court had to decide whether the admission of these elements, individually and collectively, caused a miscarriage of justice or otherwise influenced the jury's decision.

The court found that the photographic and video evidence, while graphic, had significant probative value in establishing the nature and extent of the injuries, and their admission did not cause a miscarriage of justice. The court also held that the declaration of the Crown witness as hostile was appropriate and that the admission of the witness's police statement did not contravene the Evidence Act 1977 (Qld). Regarding the appellant's police interview, the court concluded that the evidence was properly admitted and that no direction to the jury was necessary. The court further held that the circumstantial evidence, when considered as a whole, was sufficient for the jury to be satisfied beyond reasonable doubt that the appellant had the necessary intent, and thus the murder verdict was not against the weight of the evidence.

The appeal was dismissed, and the conviction and sentence of the appellant were upheld.

Orders

Orders of the court

Appeal dismissed

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 Baira [2009] QCA 332
PARTIES:	R v BAIRA, Lew James (appellant)
FILE NO/S:	CA No 57 of 2009 SC No 37 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	30 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2009
JUDGES:	Holmes JA, Mullins and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	EVIDENCE – ADMISSIBILITY AND RELEVANCE – IN GENERAL – OTHER CASES – where appellant convicted by jury of murder – where at trial appellant conceded he unlawfully killed victim, so only issue was intent – where Crown tendered 43 photographs and a video recording of injuries to victim’s face, head, torso and limbs – whether the number of photographs and video had a prejudicial effect in excess of their probative value – whether admission of photographic and video evidence caused miscarriage of justice CRIMINAL LAW – PROCEDURE – WITNESSES – HOSTILE WITNESSES – where a Crown witness gave evidence inconsistent with prior police statement – where witness declared hostile because his evidence was “different” from his police statement – where, as a result, Crown prosecutor cross-examined the witness and tendered his police statement – whether hostile witness ruling properly made – whether, under s 18 of Evidence Act 1977 (Qld), statement should not have been admitted – whether s 17 alone applies where witness declared hostile – whether whole statement admissible – whether trial judge should have directed jury about use of statement – whether miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where record of appellant’s police interview tendered – where in it appellant told lies and later, after taking legal advice, refused to answer further questions – where no direction sought or given about that evidence – where trial judge invited jury to weigh appellant’s account given in his police interview – whether evidence of appellant’s refusal to answer questions properly admitted – whether jury should have been given direction about lies – whether trial judge’s direction reversed onus of proof – whether miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where evidence of appellant’s having intent to kill or do grievous bodily harm circumstantial – whether trial judge’s direction on use of circumstantial evidence adequate – whether jury could have been satisfied beyond reasonable doubt that the circumstantial evidence was only consistent with appellant’s having the necessary intent – whether murder verdict against weight of evidence Evidence Act 1977 (Qld), s 17, s 18 McLellan v Bowyer (1961) 106 CLR 95; [1961] HCA 49, cited Price v Bevan (1974) 8 SASR 81, applied R v Booth (1981) 74 Cr App R 123, applied R v Hayden…