R v BBD

Case [2006] QCA 441 3 November 2006

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BBD [2006] QCA 441

PARTIES:

R
v
BBD
(appellant)

FILE NO/S:

CA No 166 of 2006
DC No 293 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

3 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2006

JUDGES:

Jerrard JA, Mackenzie and Philip McMurdo JJ
Separate reasons for judgment of each member of the Court, Jerrard JA and Mackenzie J concurring as to the orders made, Philip McMurdo J dissenting in part

ORDERS:

1. Appeal against conviction allowed
2. Conviction set aside
3. No new trial ordered
4. Verdict of acquittal entered

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant was convicted of unlawfully omitting to do an act, which it was her duty to do, thereby causing bodily harm pursuant to s 328 of the Criminal Code1899 (Qld) – appellant was supervising her two grandchildren – the older grandchild was driving a forklift up and down a driveway and the other was riding on the same forklift – where appellant had to go inside the house – during appellant’s absence an accident occurred and the younger boy was trapped beneath the forklift – appeal against conviction – whether trial judge erred in explaining the degree of fault required for criminal negligence – whether trial judge erred by not specifically explaining to the jury the meaning of “recklessness”

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – whether the trial judge erred in summing up by not instructing the jury as to the possible operation of s 25 of the Criminal Code (extraordinary emergencies)

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant owed a duty under s 286 of the Criminal Code (duty of person who has care of a child) and a separate duty under s 289 of the Criminal Code (duty of persons in charge of dangerous things) – whether the trial judge erred in summing up to the jury by failing to distinguish between the separate duties under ss 286 and 289 of the Criminal Code

Criminal Code1899 (Qld), s 25, s 286, s 289, s 328,
s 668E(1A)
Crimes Act1900 (NSW), s 61R(1)

Andrews v Director of Public Prosecutions [1937] AC 576, cited
Banditt v R (2005) 223 ALR 633; [2005] HCA 80 discussed
Evgeniou v The Queen (1964) 37 ALJR 508, discussed
R v Bateman (1925) 19 Cr App R 8, cited
R v Hodgetts and Jackson [1990] 1 Qd R 456, discussed
R v Scarth [1945]…

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 BBD

Details

AGLC: R v BBD [2006] QCA 441
Case: [2006] QCA 441
Decision Date: 3 November 2006

CaseChat Overview and Summary

The appellant, BBD, was convicted of unlawfully omitting to do an act, which it was her duty to do, thereby causing bodily harm to her younger grandchild pursuant to section 328 of the Criminal Code 1899 (Qld). The appellant was supervising her two grandchildren, with the older grandchild driving a forklift and the younger riding on it. While the appellant briefly left to go inside the house, an accident occurred, resulting in the younger boy being trapped beneath the forklift. BBD appealed against her conviction, arguing that the trial judge erred in several aspects of the summing up to the jury.

The legal issues before the court included whether the trial judge correctly explained the degree of fault required for criminal negligence and whether the trial judge adequately explained the meaning of "recklessness" to the jury. Additionally, the court examined whether the trial judge erred by not instructing the jury on the possible operation of section 25 of the Criminal Code, which pertains to extraordinary emergencies. The appellant also contended that the trial judge failed to distinguish between the separate duties under sections 286 and 289 of the Criminal Code, which relate to the care of a child and the management of dangerous things, respectively.

In examining the summing up as a whole, the court determined that the trial judge did indeed err in several respects. The judge failed to properly explain the degree of fault required for criminal negligence and neglected to explain the concept of recklessness to the jury. Furthermore, the court found that the trial judge did not adequately address the potential applicability of section 25 concerning extraordinary emergencies. The court also noted that the trial judge did not sufficiently distinguish between the separate duties outlined in sections 286 and 289 of the Criminal Code. These errors were deemed significant enough to warrant the allowance of the appeal and the setting aside of the conviction.

The court allowed the appeal against the conviction, set aside the conviction, and entered a verdict of acquittal without ordering a new trial. This decision underscores the importance of clear and precise judicial directions to ensure a fair trial and the accurate application of the law.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction set aside

3. No new trial ordered

4. Verdict of acquittal entered

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.

Citations

AGLC Citation

R v BBD [2006] QCA 441

Most Recent Citation

R v Clark [2007] QCA 168

Cases citing this decision · 4 of 4 shown

R v Struhs
[2025] QSC 10

…1; [1997] HCA 19, cited R v Barrett (2007) 171 A Crim R 315; [2007] VSCA 95 cited R v Bateman (1925) 19 Cr App R 8, cited R v BBD [2007] 1 Qd R 478; [2006] QCA 441, cited R v Beck [1990] 1 Qd R 30, followed R v Bell [2004] QCA 219, cited R v Bellino & Conte [1993] 1 Qd R 521, cited R v Brooks (1902) 5 CCC 372; […
DAB v Capes
[2011] WASC 137 Para 3

…or gross negligence of the kind and degree which, in the view of the court, should expose him to punishment for a criminal offence: see, eg, R v BBD [2006] QCA 441; [2007] 1 Qd R 478; R v Clark [2007] QCA 168; (2007) 171 A Crim R 532.…
R v Patel
[2010] QSC 68 Para 1

…ll as of other provisions of the Queensland Criminal Code . [7](1952) 87 CLR 115, 121. [8]See also, for example, R v Kidd [2001] QCA 536; and R v BDD [2006] QCA 441, where a number of authorities are collected. [9][1943] AC 255.…
R v Clark
[2007] QCA 168 Para 1

…two witnesses swore, then they could conclude he had deliberately taken a risk which could result in death or serious injury to another. [1][2006] QCA 441.…

View all 4 citing cases →

Cases cited in this decision · 8 of 8 shown

Banditt v The Queen
[2005] HCA 80

…(NSW), s 61R(1) Andrews v Director of Public Prosecutions [1937] AC 576, cited Banditt v R (2005) 223 ALR 633; [2005] HCA 80 discussed Evgeniou v The Queen (1964) 37 ALJR 508, discussed R v Bateman (1925) 19 Cr App R 8, cited R v Hodgetts and Jackson [1990] 1 Qd R 456, discussed R v Scarth [1945] St R Qd 38, cited R…
R v Lavender
[2005] HCA 37 Para 1

…ecessary and undesirable to add recklessness, as if it were a separate element of the offence. [9] See R v Lavender (2005) 222 CLR 67 at 108; [2005] HCA 37 at [127].…
R v Thomas
[2002] QCA 23

…tts and Jackson [1990] 1 Qd R 456, discussed R v Scarth [1945] St R Qd 38, cited R v Thomas [2002] QCA 23; CA No 253 of 2001, 15 February 2002, applied La Fontaine v The Queen (1976) 136 CLR 62, discussed COUNSEL: A M West for the appellant D R MacKenzie for the respondent SOLICITORS: Legal Aid Queensland for th…
R v Kidd
[2001] QCA 536 Para 1

…f each particular case. This is further highlighted by the distinguishing, in R v Thomas , of R v Stott and Van Embden [2002] 2 Qd R 313 and R v Kidd [2001] QCA 536 on the ground that they depended on the particular and peculiar facts of the respective cases. It may be added that, in Thomas , the occasion and the…
La Fontaine v The Queen
[1976] HCA 52 Para 1

…tt , its meaning varies from one context to another. Their Honours there cited the judgment of Gibbs J in La Fontaine v The Queen (1976) 136 CLR 62, in which, as their Honours said, Gibbs J discountenanced, in those States where legislation did not adopt terms such as “reckless” or “reckless indifference”, their use…
[2004] 1 AC 1034
[2004] 1 AC 1034 Para 1

…ords in R v Caldwell [1982] AC 341, which culminated in the overruling of that decision by a unanimous decision of the House in R v G [2004] 1 AC 1034. It is unnecessary to discuss here that controversy or instances of a similar debate in Australian case law, in jurisdictions applying the common law or a statute wh…
[1937] AC 576
[1937] AC 576 Para 1

…ly satisfied the test for the high standard of negligence necessary to constitute criminal negligence. In Andrews v Director of Public Prosecutions [1937] AC 576, Lord Atkin approved the statement:…
[1982] AC 341
[1982] AC 341 Para 1

…d, the meaning of “recklessness” was the subject of considerable controversy after the decision of the House of Lords in R v Caldwell [1982] AC 341, which culminated in the overruling of that decision by a unanimous decision of the House in R v G [2004] 1 AC 1034. It is unnecessary to discuss here that controver…

Legislation cited in this decision · 1

Crimes Act 1900 (ACT)
61R(1) 2 mentions (from Para 1)

CITATION:	R v BBD [2006] QCA 441
PARTIES:	R v BBD (appellant)
FILE NO/S:	CA No 166 of 2006 DC No 293 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2006
JUDGES:	Jerrard JA, Mackenzie and Philip McMurdo JJ Separate reasons for judgment of each member of the Court, Jerrard JA and Mackenzie J concurring as to the orders made, Philip McMurdo J dissenting in part
ORDERS:	1. Appeal against conviction allowed 2. Conviction set aside 3. No new trial ordered 4. Verdict of acquittal entered
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant was convicted of unlawfully omitting to do an act, which it was her duty to do, thereby causing bodily harm pursuant to s 328 of the Criminal Code1899 (Qld) – appellant was supervising her two grandchildren – the older grandchild was driving a forklift up and down a driveway and the other was riding on the same forklift – where appellant had to go inside the house – during appellant’s absence an accident occurred and the younger boy was trapped beneath the forklift – appeal against conviction – whether trial judge erred in explaining the degree of fault required for criminal negligence – whether trial judge erred by not specifically explaining to the jury the meaning of “recklessness” CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – whether the trial judge erred in summing up by not instructing the jury as to the possible operation of s 25 of the Criminal Code (extraordinary emergencies) CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant owed a duty under s 286 of the Criminal Code (duty of person who has care of a child) and a separate duty under s 289 of the Criminal Code (duty of persons in charge of dangerous things) – whether the trial judge erred in summing up to the jury by failing to distinguish between the separate duties under ss 286 and 289 of the Criminal Code Criminal Code1899 (Qld), s 25, s 286, s 289, s 328, s 668E(1A) Crimes Act1900 (NSW), s 61R(1) Andrews v Director of Public Prosecutions [1937] AC 576, cited Banditt v R (2005) 223 ALR 633; [2005] HCA 80 discussed Evgeniou v The Queen (1964) 37 ALJR 508, discussed R v Bateman (1925) 19 Cr App R 8, cited R v Hodgetts and Jackson [1990] 1 Qd R 456, discussed R v Scarth [1945]…