R v BBO - [2008] QCA 276

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBO [2008] QCA 276

PARTIES:

R
v
BBO
(appellant)

FILE NO/S:

CA No 297 of 2007
DC No 558 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2008

JUDGES:

McMurdo P, Mackenzie AJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant convicted after trial of two counts of rape by digital penetration of a 12 year old girl – defence counsel made irrelevant comment during his closing address as to what parts of the evidence caused him personal concern – defence counsel speculated in his closing address as to why the appellant did not give evidence – judge commented negatively on some parts of defence case put forward by defence counsel – judge emphasised that the issue for the jury was whether the charges were proved beyond reasonable doubt – judge emphasised that his observations on the facts were not directions and that issues of fact were for the jury – judge directed jury that no adverse inference could be drawn from the appellant choosing not to give evidence – whether the judge erred in his summing up as to the appellant's choice not to give evidence – whether the judge erred in describing the issue as whether the central prosecution witnesses were honest or had fabricated their evidence – whether the judge's summing up was unbalanced or unfair

Criminal Code 1899 (Qld), s 618, s 620

Azzopardi v The Queen, (2001) 205 CLR 50; [2001] HCA 25, applied
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, considered
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26, considered
R v Boyce [1993] QCA 115, cited
R v CL Lam, Truong, Duong and VT Lam[2001] QCA 279
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, considered
R v Dee (1985) 19 A Crim R 224, cited
R v Giffin [1971] Qd R 12, cited
R v Guerin (1967) 1 NSWR 255, cited
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, considered
R v Surrey [2005] 2 Qd R 81; [2005] QCA 4, considered
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, distinguished
R v Zurek[2006] QCA 543, considered
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, considered

COUNSEL:

J D Henry SC, with J C Trevino, for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director 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 BBO

Details

AGLC: R v BBO [2008] QCA 276
Case: [2008] QCA 276
Decision Date: 12 September 2008

CaseChat Overview and Summary

The appellant, BBO, was convicted after a trial of two counts of rape by digital penetration of a 12-year-old girl. The case was brought to the court on appeal, with the primary contention being that the summing up by the trial judge contained errors that potentially prejudiced the appellant's right to a fair trial. Specifically, the appeal focused on whether the judge's comments during the summing up were misdirections or omissions that could have influenced the jury's decision-making process.

The legal issues before the court were whether the trial judge erred in his summing up regarding the appellant's choice not to give evidence, whether the judge's remarks on the central prosecution witnesses' honesty or fabrication of evidence were appropriate, and whether the summing up as a whole was unbalanced or unfair. The court needed to assess whether these comments constituted a misdirection or non-direction that might have affected the fairness of the trial.

In reviewing the summing up, the court found that the judge had correctly directed the jury that no adverse inference could be drawn from the appellant's decision not to give evidence. The court also determined that the judge's emphasis on the jury's role in determining the truthfulness of the evidence was proper, and his observations on the facts were not intended as directions but rather as a guide to assist the jury. The court considered the summing up as a whole and concluded that it did not contain any misdirections or omissions that could have prejudiced the appellant's case.

Given these findings, the appeal was dismissed. The court held that the summing up was fair and balanced, and no errors were identified that would warrant a new trial or an appeal.

Orders

Orders of the court

Appeal dismissed

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BBO [2008] QCA 276
PARTIES:	R v BBO (appellant)
FILE NO/S:	CA No 297 of 2007 DC No 558 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2008
JUDGES:	McMurdo P, Mackenzie AJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – appellant convicted after trial of two counts of rape by digital penetration of a 12 year old girl – defence counsel made irrelevant comment during his closing address as to what parts of the evidence caused him personal concern – defence counsel speculated in his closing address as to why the appellant did not give evidence – judge commented negatively on some parts of defence case put forward by defence counsel – judge emphasised that the issue for the jury was whether the charges were proved beyond reasonable doubt – judge emphasised that his observations on the facts were not directions and that issues of fact were for the jury – judge directed jury that no adverse inference could be drawn from the appellant choosing not to give evidence – whether the judge erred in his summing up as to the appellant's choice not to give evidence – whether the judge erred in describing the issue as whether the central prosecution witnesses were honest or had fabricated their evidence – whether the judge's summing up was unbalanced or unfair Criminal Code 1899 (Qld), s 618, s 620 Azzopardi v The Queen, (2001) 205 CLR 50; [2001] HCA 25, applied Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, considered Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26, considered R v Boyce [1993] QCA 115, cited R v CL Lam, Truong, Duong and VT Lam[2001] QCA 279 R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, considered R v Dee (1985) 19 A Crim R 224, cited R v Giffin [1971] Qd R 12, cited R v Guerin (1967) 1 NSWR 255, cited R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, considered R v Surrey [2005] 2 Qd R 81; [2005] QCA 4, considered Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, distinguished R v Zurek[2006] QCA 543, considered RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, considered
COUNSEL:	J D Henry SC, with J C Trevino, for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of…