R v Bargenquast & Holmes - [2004] QSC 481

SUPREME COURT OF QUEENSLAND

CITATION: R v Bargenquast & Holmes [2004] QSCPR 1; [2004] QSC
481
PARTIES: R
v
BARGENQUAST, Adam Troy
(applicant)
HOLMES, Mark William
(applicant)

FILE NO/S:

SC No 451 of 2004 SC No 456 of 2004
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING Supreme Court
COURT:
DELIVERED ON: 21 December 2004
DELIVERED AT: Brisbane
HEARING DATE: 12 November 2004
JUDGE: Philippides J
ORDERS: 1. Order that the applicant Bargenquast be tried
separately from the other accused on the indictment
2. The application for a separate trial in respect of the
applicant Holmes is refused

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – JOINT OFFENDERS – Murder – application for separate trials – where statements of co-accused inadmissible against applicants implicating them in commission of the offence – whether risk of positive injustice – whether evidence

admissible against applicants significantly weaker than and different from that admissible against co-accused, whether real risk that the weaker prosecution case would be made stronger by reason of prejudicial material admissible in the case of the co-accused
Criminal Code 1899 (Qld), s 567, 568, 597
Darby v The Queen (1981-82) 148 CLR 668
Farrell v Cotton (1990) A Crim R 311
Gilbert v The Queen (2000) 74 ALJR 676
Piller Kramer Kramer & Edwards (1995) 86 A Crim R 249
R v Aboud & Stanley [2003] QCA 499
R v Crawford [1989] 2 Qd R 443
R v Davidson [2000] QCA 39
R v Georgiou & Ors [2002] QCA 206
R v Lewis & Baira [1996] QCA 405
R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429
Webb v The Queen (1994) 181 CLR 41
COUNSEL: J Hunter for the applicant Bargenquast
D J Walsh for the applicant Holmes
T A Fuller for the respondent
SOLICITORS: Bernard Bradley & Associates for the applicant Bargenquast
A W Bale & Sons for the applicant Holmes
Director of Public Prosecutions (Queensland) for the
respondent
PHILIPPIDES J:
The application

The applicants, Adam Troy Bargenquast and Mark William Holmes, are two of five co-accused jointly charged with the murder of Kerrie Palmer on or about 27 January 2003 on the Sunshine Coast. They are also charged with a number of
offences committed in the lead up to Palmer’s murder.
They seek to be tried separately from their co-accused, Jon David Farthing, Wade Anthony Davis and Audy Perley Desaubin, who gave varying accounts of their involvement to police, which inculpated the applicants in the commission of the offences. The two applicants declined to be interviewed by police. The applicants submit that they are significantly prejudiced in their trials by the nature of those accounts and that such prejudice cannot be cured by proper direction to the jury so that they will be unable to receive a fair trial.
Applicable principles
There is no issue that the charges and the accused are properly joined pursuant to s 567 and 568 of the Criminal Code. The sole issue is whether under s 597B of the Criminal Code,

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 Bargenquast & Holmes

Details

AGLC: R v Bargenquast & Holmes [2004] QSCPR 1 [2004] QSC 481
Case: [2004] QSC 481
Decision Date: 21 December 2004

CaseChat Overview and Summary

The applicants, Bargenquast and Holmes, were charged with the murder of an individual in Queensland. The case came before the High Court of Australia, which was required to determine whether the applicants should be granted separate trials from their co-accused. The central issue was whether the risk of positive injustice would arise if the statements made by the co-accused, which implicated the applicants in the commission of the offence, were admitted as evidence against them.

The court considered the potential for prejudice that could arise from the co-accused's statements being used against the applicants during a joint trial. The court found that there was a significant risk of positive injustice due to the statements implicating the applicants in the offence. The court also noted that the statements could potentially prejudice the applicants' right to a fair trial. As a result, the court determined that a separate trial for Bargenquast was necessary to ensure a fair trial and protect against the risk of positive injustice. However, the court found that there was no such risk for Holmes, and therefore denied the application for a separate trial in his case.

In light of the findings, the High Court ordered that Bargenquast be tried separately from the other accused on the indictment. The application for a separate trial for Holmes was refused. This decision highlights the importance of considering the potential for prejudice and ensuring a fair trial for all defendants in criminal proceedings.

Orders

Orders of the court

1. Order that the applicant Bargenquast be tried

separately from the other accused on the indictment

2. The application for a separate trial in respect of the

applicant Holmes is refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Bargenquast & Holmes [2004] QSCPR 1; [2004] QSC 481
PARTIES:	R
v
BARGENQUAST, Adam Troy
(applicant)
HOLMES, Mark William
(applicant)
FILE NO/S:	SC No 451 of 2004 SC No 456 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING	Supreme Court
COURT:
DELIVERED ON:	21 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	12 November 2004
JUDGE:	Philippides J
ORDERS:	1. Order that the applicant Bargenquast be tried separately from the other accused on the indictment 2. The application for a separate trial in respect of the applicant Holmes is refused
CATCHWORDS:	CRIMINAL LAW – PRACTICE AND PROCEDURE – JOINT OFFENDERS – Murder – application for separate trials – where statements of co-accused inadmissible against applicants implicating them in commission of the offence – whether risk of positive injustice – whether evidence
admissible against applicants significantly weaker than and different from that admissible against co-accused, whether real risk that the weaker prosecution case would be made stronger by reason of prejudicial material admissible in the case of the co-accused
Criminal Code 1899 (Qld), s 567, 568, 597
Darby v The Queen (1981-82) 148 CLR 668 Farrell v Cotton (1990) A Crim R 311 Gilbert v The Queen (2000) 74 ALJR 676 Piller Kramer Kramer & Edwards (1995) 86 A Crim R 249 R v Aboud & Stanley [2003] QCA 499
R v Crawford [1989] 2 Qd R 443
R v Davidson [2000] QCA 39 R v Georgiou & Ors [2002] QCA 206 R v Lewis & Baira [1996] QCA 405 R v Witchard & Ors; ex parte A-G (Qld) [2004] QCA 429 Webb v The Queen (1994) 181 CLR 41
COUNSEL:	J Hunter for the applicant Bargenquast D J Walsh for the applicant Holmes T A Fuller for the respondent
SOLICITORS:	Bernard Bradley & Associates for the applicant Bargenquast A W Bale & Sons for the applicant Holmes Director of Public Prosecutions (Queensland) for the respondent