R v Bartorillo - [2006] QCA 283

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bartorillo [2006] QCA 283

PARTIES:

R
v
BARTORILLO, Cherylynn Joy
(appellant/applicant)

FILE NO/S:

CA No 64 of 2006
CA No 128 of 2006
DC No 1860 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2006

JUDGES:

Jerrard and Holmes JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction allowed
2. Set aside guilty verdict
3. New trial ordered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – police unlawfully searched appellant’s bag and found stolen property – appellant’s bag was in the possession of another person at the time of the unlawful search – trial judge ruled that illegality arose from a non-reckless mistake by police – illegal search evidence was admitted at trial – inconsistent descriptions of police search – whether trial judge should have resolved the issue of whether police had asked the appellant’s colleague if they could search the bag or were invited to search the bag – whether the illegal search evidence was wrongfully admitted at trial

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – appellant did not give evidence at trial – whether trial judge’s direction to the jury unnecessarily emphasised the consequences that follow from appellant’s choice not to give evidence at trial

Corrective Services Act 2000 (Qld), s 150, s 151, s 152, s 153, s 154
Criminal Code 1899 (Qld), s 433(1), s 590AA
Penalties and Sentences Act 1992 (Qld), s 156, s 156A, s 9(2)(m)

Bunning v Cross (1978) 141 CLR 54, considered
Psaila v Department of Corrective Services [2005] QCA 16; Appeal No 11059 of 2004, 11 February 2005, considered
R v Chard; ex parte A-G (Qld) [2004] QCA 372; CA No 277 of 2004, 8 October 2004, considered
R v Moore; ex parte A-G [2002] QCA 116; CA No 320 of 2001, 26 March 2002, considered
R v Waters [1998] 2 Qd R 442, cited

COUNSEL:

The appellant/applicant appeared for herself
B G Campbell for the respondent

SOLICITORS:

The appellant/applicant appeared for herself
Director of Public Prosecutions (Queensland) for the respondent

JERRARD JA: On 15 February 2006 Ms Bartorillo was convicted by a jury of receiving property obtained by crime and which she had reason to believe had been so obtained.[1] She was sentenced to nine months imprisonment, which the learned trial judge directed to be cumulative upon a period of about 11 months imprisonment, which the learned trial judge expected Ms Bartorillo would be required to serve, by reason…

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 Bartorillo

Details

AGLC: R v Bartorillo [2006] QCA 283
Case: [2006] QCA 283
Decision Date: 4 August 2006

CaseChat Overview and Summary

The appeal in R v Bartorillo involved the appellant, who was convicted of possessing stolen property. The dispute centred around the legality of the evidence obtained by police during an unlawful search of the appellant's bag, which was in the possession of another person at the time of the search. The appellant argued that the trial judge erred in admitting the evidence from the unlawful search and in directing the jury regarding the appellant's choice not to give evidence.

The court was required to determine whether the trial judge should have resolved the inconsistency in the descriptions of the police search, specifically whether the police had asked or been invited to search the bag. Additionally, the court needed to decide if the illegal search evidence was wrongfully admitted at trial and whether the trial judge's direction to the jury about the appellant's choice not to give evidence was proper.

The court found that the trial judge did not adequately address the inconsistency in the police search descriptions, leading to an incorrect decision to admit the illegal search evidence. The court also found that the trial judge's direction to the jury about the appellant's choice not to give evidence was potentially prejudicial. Consequently, the appeal against the conviction was allowed, the guilty verdict was set aside, and a new trial was ordered.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Set aside guilty verdict

3. New trial ordered

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 Bartorillo [2006] QCA 283
PARTIES:	R v BARTORILLO, Cherylynn Joy (appellant/applicant)
FILE NO/S:	CA No 64 of 2006 CA No 128 of 2006 DC No 1860 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2006
JUDGES:	Jerrard and Holmes JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction allowed 2. Set aside guilty verdict 3. New trial ordered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – police unlawfully searched appellant’s bag and found stolen property – appellant’s bag was in the possession of another person at the time of the unlawful search – trial judge ruled that illegality arose from a non-reckless mistake by police – illegal search evidence was admitted at trial – inconsistent descriptions of police search – whether trial judge should have resolved the issue of whether police had asked the appellant’s colleague if they could search the bag or were invited to search the bag – whether the illegal search evidence was wrongfully admitted at trial CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE – appellant did not give evidence at trial – whether trial judge’s direction to the jury unnecessarily emphasised the consequences that follow from appellant’s choice not to give evidence at trial Corrective Services Act 2000 (Qld), s 150, s 151, s 152, s 153, s 154 Criminal Code 1899 (Qld), s 433(1), s 590AA Penalties and Sentences Act 1992 (Qld), s 156, s 156A, s 9(2)(m) Bunning v Cross (1978) 141 CLR 54, considered Psaila v Department of Corrective Services [2005] QCA 16; Appeal No 11059 of 2004, 11 February 2005, considered R v Chard; ex parte A-G (Qld) [2004] QCA 372; CA No 277 of 2004, 8 October 2004, considered R v Moore; ex parte A-G [2002] QCA 116; CA No 320 of 2001, 26 March 2002, considered R v Waters [1998] 2 Qd R 442, cited
COUNSEL:	The appellant/applicant appeared for herself B G Campbell for the respondent
SOLICITORS:	The appellant/applicant appeared for herself Director of Public Prosecutions (Queensland) for the respondent