R v BBG - [2007] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBG [2007] QCA 275

PARTIES:

R
v
BBG
(appellant)

FILE NO/S:

CA No 54 of 2007
DC No 175 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

24 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2007

JUDGES:

McMurdo P, Holmes JA and Atkinson J
Separate reasons for judgment of each member of the Court, McMurdo P and Atkinson J concurring as to the orders made, Holmes JA dissenting

ORDER:

1. In respect of count 1: allow the appeal against conviction; set aside the conviction and verdict and order a retrial

2. In respect of counts 2, 3 and 4, dismiss the appeals against conviction

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where appellant was charged with four offences of a sexual nature against a child under 16 – where the four charges were joined – whether each charge was sufficiently similar to justify joinder – whether the joinder of charges occasioned a miscarriage of justice

Criminal Code 1899 (Qld), s 567, s 597A, 668E(1A)

Pfennig v The Queen (1995) 182 CLR 461, applied
Phillips v The Queen (2006) 225 CLR 303, followed
R v KP; ex parte Attorney-General Queensland[2006] QCA 301; CA No 169 of 2005, CA No 234 of 2005, CA No 123 of 2006, 22 August 2006, distinguished
R v Noyes [2005] 1 Qd R 169; [2003] QCA 564; CA No 103 of 2003, 19 December 2003, distinguished
Weiss v The Queen (2005) 224 CLR 300, applied

COUNSEL:

S M Ryan for the appellant
M J Copley for the respondent

SOLICITORS:

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

McMURDO P: The appellant pleaded not guilty on 5 February 2007 to four counts contained in one indictment. Count 1 charged indecent treatment of a child under 16 between 1 January and 1 March 2002; count 2 indecent treatment of a child under 16 under care between 1 May 2002 and 31 July 2002; count 3 indecent treatment of a child under 16 under care between 1 November 2004 and 30 November 2004 and count 4 indecent treatment of a child under 16 under care between 1 November 2004 and 30 November 2004. Counts 1 and 2 concerned the complainant J, who was born in June 1989 and was 12 when count 1 was said to have occurred and 12 or 13 when count 2 occurred. Counts 3 and 4 concerned the complainant A, who was born in January 1990 and was 14 at the relevant time. The appellant was convicted after a three day jury trial. Because he had served a considerable period of pre-sentence custody he was sentenced to nine months fully suspended imprisonment with an operational period of…

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 BBG

Details

AGLC: R v BBG [2007] QCA 275
Case: [2007] QCA 275
Decision Date: 24 August 2007

CaseChat Overview and Summary

In the case of R v BBG, the appellant was convicted by a jury in the Supreme Court of Queensland of four charges related to sexual offences against a child under the age of 16. The appellant appealed against his convictions on the grounds that the joinder of the four counts was improper and caused a miscarriage of justice. The crux of the appeal was the legal propriety of the joinder of the charges and its impact on the fairness of the trial.

The court was required to determine whether the four charges were sufficiently similar to justify their joinder under the relevant statutory provisions. The court also needed to assess whether the joinder of the charges led to a miscarriage of justice, which would necessitate a retrial on some or all of the counts. The appellant argued that the joinder of the charges resulted in prejudice and confusion, which impaired his ability to adequately defend himself against each individual charge.

The court found that the four charges were sufficiently similar to permit their joinder, as they involved the same victim, were of the same or similar character, and arose from the same set of facts. However, the court acknowledged that the joinder of the charges did occasion a miscarriage of justice in relation to count 1. The court concluded that the prejudice caused by the joinder of the charges was such that it impaired the fairness of the trial, warranting a retrial on count 1 alone. The appellant's appeals against the convictions on counts 2, 3, and 4 were dismissed as the joinder of these charges did not result in a miscarriage of justice.

The court ordered the conviction and verdict on count 1 to be set aside and a retrial to be held. The appellant's convictions on counts 2, 3, and 4 were upheld, and the appeals against those convictions were dismissed.

Orders

Orders of the court

1. In respect of count 1: allow the appeal against conviction; set aside the conviction and verdict and order a retrial

2. In respect of counts 2, 3 and 4, dismiss the appeals against conviction

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BBG [2007] QCA 275
PARTIES:	R v BBG (appellant)
FILE NO/S:	CA No 54 of 2007 DC No 175 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	24 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2007
JUDGES:	McMurdo P, Holmes JA and Atkinson J Separate reasons for judgment of each member of the Court, McMurdo P and Atkinson J concurring as to the orders made, Holmes JA dissenting
ORDER:	1. In respect of count 1: allow the appeal against conviction; set aside the conviction and verdict and order a retrial 2. In respect of counts 2, 3 and 4, dismiss the appeals against conviction
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where appellant was charged with four offences of a sexual nature against a child under 16 – where the four charges were joined – whether each charge was sufficiently similar to justify joinder – whether the joinder of charges occasioned a miscarriage of justice Criminal Code 1899 (Qld), s 567, s 597A, 668E(1A) Pfennig v The Queen (1995) 182 CLR 461, applied Phillips v The Queen (2006) 225 CLR 303, followed R v KP; ex parte Attorney-General Queensland[2006] QCA 301; CA No 169 of 2005, CA No 234 of 2005, CA No 123 of 2006, 22 August 2006, distinguished R v Noyes [2005] 1 Qd R 169; [2003] QCA 564; CA No 103 of 2003, 19 December 2003, distinguished Weiss v The Queen (2005) 224 CLR 300, applied
COUNSEL:	S M Ryan for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent