R v Banhelyi

[2012] QCA 357

SUPREME COURT OF QUEENSLAND

CITATION:

R v Banhelyi [2012] QCA 357

PARTIES:

R
v
BANHELYI, Charles Gene
(appellant)

FILE NO/S:

CA No 158 of 2011
DC No 263 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

18 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2012

JUDGES:

Holmes JA and Fryberg and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appeal allowed;

2.    Verdict of guilty set aside;

3.    New trial ordered.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – MOTOR VEHICLES – GENERALLY – where appellant found guilty of one count of dangerous operation of a motor vehicle causing death and grievous bodily harm of another person – where there was a circumstance of aggravation – where there was inadmissible and prejudicial opinion evidence admitted into evidence before the jury– whether the expert was an expert to give opinion evidence in photography or interpretation of images from video footage – whether the admission of the opinion evidence occasioned to a miscarriage of justice – whether s 669E(1A) Criminal Code 1899 (Qld) applies

Criminal Code 1899 (Qld), s 23(1)(a), s 668E(1), s 668E(1A)

Anandan v R [2011] VSCA 413, cited
BBH v The Queen (2012) 245 CLR 499; (2012) 86 ALJR 357; [2012] HCA 9, cited
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42, cited
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
Patel v The Queen (2012) 86 ALJR 954; [2012] HCA 29, cited
R v LM [2004] QCA 192, cited
R v Urbano [2011] QCA 96, cited
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50, cited

COUNSEL:

R A East for the appellant
M R Byrne SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  I agree with the reasons of North J and the orders he proposes.

1. FRYBERG J:  I agree with the orders proposed by North J and with his Honour’s reasons for those orders.  As there is to be a retrial, I add some short observations.

1. I have felt considerable disquiet about the use made of still pictures manufactured from the video footage tendered into evidence.  No objection to the tender of those stills was taken.  That is perhaps surprising.  There was a conflict in the evidence about the frame rate of the video camera; no evidence was given about how the stills were manufactured; and the quality of the stills seems higher than that of the original footage.  Investigations ought to have been made to determine whether the stills fairly reflect what happened.  Perhaps they were; but none was referred to in the evidence.  If the stills did not fairly reflect what happened, I doubt their admissibility.  If they did,…