R v BBD

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.