R v Baker

[2006] QCA 472

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baker [2006] QCA 472

PARTIES:

R
v
BAKER, Kenneth Pancho
(applicant)

FILE NO/S:

CA No 218 of 2006
DC No 1573 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668B Criminal Code

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

20 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 November 2006

JUDGES:

de Jersey CJ, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application filed on 4 August 2006 is refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – CASE STATED AND REFERENCE OF QUESTION OF LAW – whether the applicant can revisit a ruling made in a previous pre-trial hearing at an interlocutory stage - whether the “court of trial” has reserved any question of law for the consideration of this Court

Criminal Code 1899 (Qld), s 590AA, s 668B
Evidence Act 1977 (Qld), s 93B

COUNSEL:

The applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  I will give judgment now.  On 4 August

2006, the applicant filed an application described on its face

as "an application for evidence allowed within case of

deceased witness".  The order sought is expressed in this way:

"Under section 668B as it would be highly prejudicial to
   proceed to trial as I would not be given a fair and just
   trial in cross-examining the deceased."

There is currently in the District Court an indictment

charging the appellant with the commission on 2 July 2002 of a

number of offences:  assault occasioning bodily harm; burglary

in the night with violence; assault; serious assault, and

wilful damage.  In two cases the complainant was a Mr

Battershell. Battershell died on 4 October 2004.  The matter

has not yet proceeded to trial.

A pretrial application under section 590AA of the Criminal

Code was heard in the District Court on 12 April 2006.  The

Crown sought a direction that it might lead evidence of

statements by Mr Battershell under section 93B of the Evidence

Act 1997.  The application was opposed.  Her Honour Judge Dick

ruled the statements admissible.  The application now before

the Court appears to be an attempt to revisit the issue on

which her Honour ruled.  That is not possible because of

section 590AA subsection 4 which provides:

"A direction or ruling must not be subject to
   interlocutory appeal, but may be raised as a ground of
   appeal against conviction or sentence."

Section 668A provides that the Attorney-General may refer a

point of law arising in relation to a pretrial ruling under

section 590AA to the Court of Appeal. That right has not been

exercised here. Accordingly, section 590AA subsection 4

excludes this apparent attempt to revisit the correctness of

the pretrial ruling.  The application itself refers to section

668B.  Subsection 1 of that section provides:

"When any person is indicted for any indictable offence,
   the court of trial must, on the application of counsel
   for the accused person before verdict and may in its
   discretion either before or after judgment without such
   application, reserve any question of law which arises on
   the trial for the consideration of the court."

Subsection 2 contemplates the transmission of such a question,

if properly reserved, to the Court of Appeal following

conviction.  This is not a case where the "court of trial" has

reserved any question of law for the consideration of this

Court.  No trial has commenced.  It is not a case where any

application by counsel for the accused has been made to a

court of trial and the mechanism set up by section 668B is

presently unavailable.

Mr Baker has appeared himself by telephone for the purposes of

this morning's hearing.  At the outset, he raised the question

of a possible adjournment of the application because of his

other commitments in Cairns.  The application for judgment

should, however, be refused because the primary application is

itself plainly incompetent.  The application filed on 4 August

2006 must be refused.

JERRARD JA:  I agree.

HOLMES JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.  Thank you,

Mr Baker.

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