R v BBQ

Case [2009] QCA 166 16 June 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v BBQ [2009] QCA 166

PARTIES:

R
v
BBQ
(appellant)

FILE NO/S:

CA No 167 of 2008
DC No 462 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

16 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2009, 21 April 2009

JUDGES:

Muir and Fraser JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Leave granted to amend the notice of appeal in accordance with the applicant’s letter filed on 6 November 2008.

2.   Allow the appeal.

3.   Set aside the convictions on each count.

4.   Order a new trial.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant admitted to touching the complainant’s buttocks – where count 4 alleged that the appellant had touched the complainant’s vagina – where the trial judge directed the jury that the Crown case on count 4 was that the appellant touched the complainant on the vagina and buttocks – where the trial judge subsequently corrected this direction – whether the trial judge erred in directing the jury that count 4 of the indictment included the admitted touching of the complainant’s buttocks by the appellant – whether the trial judge’s correction on this point was sufficient – whether the trial judge inappropriately emphasised the appellant’s admission that he touched the complainant’s buttocks and misdirected the jury as to the use they could make of this evidence in relation to all of the counts
APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant alleged that he had been denied a fair trial because the prosecution refused or failed to disclose relevant material in a timely manner and disobeyed a direct order of the District Court that the appellant be provided with certain materials –whether the alleged failure led to a miscarriage of justice to the appellant

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant argued that the prosecution misled the court in relation to the availability and relevance of a key fresh witness – whether the prosecution misled the court in this regard – whether the appellant suffered a miscarriage of justice due to the failure of his own counsel to take steps to ensure that the key fresh witness was called by the prosecution

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where appellant’s counsel at trial submitted that the evidence be edited to remove any reference to alleged or actual violence by the appellant towards the complainant’s mother – where appellant…

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 BBQ

Details

AGLC: R v BBQ [2009] QCA 166
Case: [2009] QCA 166
Decision Date: 16 June 2009

CaseChat Overview and Summary

The appellant in this case sought to appeal his convictions on several counts, including touching the complainant's vagina and buttocks. The appeal was heard in the court of appeal. The appellant challenged the trial judge's direction to the jury, arguing that it misdirected them regarding the evidence of his admitted touching of the complainant's buttocks. He also contended that there was misconduct by the prosecution in failing to disclose relevant materials and misleading the court about the availability and relevance of a key witness. The appellant further argued that his solicitors made a submission contrary to his instructions, which led to a miscarriage of justice. Additionally, the appellant claimed that there was an error in dismissing a witness statement as hearsay and that the trial judge improperly admitted evidence of a second interview of the complainant.

The legal issues in this appeal focused on whether the trial judge's direction to the jury was erroneous and whether the correction made by the judge was sufficient. It also examined whether the alleged misconduct by the prosecution and the alleged failure of the appellant's solicitors to take certain steps led to a miscarriage of justice. Another issue was whether the trial judge improperly admitted evidence of a second interview of the complainant under statutory provisions relating to evidence of children. The court had to determine if these issues warranted a new trial.

The court found that the trial judge's direction to the jury was indeed erroneous and that the correction made was insufficient to address the issue. The court also determined that the alleged misconduct by the prosecution and the failure of the appellant's solicitors to take certain steps led to a miscarriage of justice. Additionally, the court held that the trial judge improperly admitted evidence of a second interview of the complainant. Given these findings, the court concluded that the appeal should be allowed, the convictions set aside, and a new trial ordered.

The final orders of the court were to grant leave to amend the notice of appeal, allow the appeal, set aside the convictions on each count, and order a new trial. The court's decision highlights the importance of proper jury direction, timely disclosure of materials, adherence to legal instructions, and the proper admission of evidence, particularly in cases involving children.

Orders

Orders of the court

1. Leave granted to amend the notice of appeal in accordance with the applicant’s letter filed on 6 November 2008.

2. Allow the appeal.

3. Set aside the convictions on each count.

4. Order a new trial.

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

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Actions

Citations

R v BBQ [2009] QCA 166

Most Recent Citation

R v BBS [2009] QCA 205

Cases Citing This Decision

Rhu v The State of Western Australia [No 2] [2023] WASCA 49
Citation 1 (Para 5)

…not evidence that IW had been coached.[109] [106] R v Phillips (1936) 26 Cr App R 17. [107] R v LSS [1998] QCA 303; [2000] 1 Qd R 546. [108] R v BBQ [2009] QCA 166; (2009) 196 A Crim R 173. [109] Respondent's answer [26] - [28]; WAB 37 - 39.…
R v WBH [2019] QCA 249
Citation 2 (Para 17)

…[118] [116]Relying on R v ON [2009] QCA 62 at [40], and R v Cavalli [2010] QCA 343 at [14]. [117]Relying on R v ON at [41]. [118]Relying on R v BBQ [2009] QCA 166 at [51]-[52]; R v IE [2013] QCA 291 at [38]-[42]; and R v BCQ [2013] QCA 388.…
R v Butterworth [2019] QCA 94
Citation 3

…cited R v Ali [2017] QCA 300, followed R v BBQ (2009) 196 A Crim R 173; [2009] QCA 166, mentioned R v E [1997] QCA 99, cited R v TN (2005) 153 A Crim R 129; [2005] QCA 160, cited TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: P J Callaghan SC for the appellant J A Geary for the respondent SOLI…
R v Ali [2017] QCA 300
Citation 4 (Para 21)

…t’s responses amounted to an admission to the offence charged in count 2. [86][2013] QCA 291 per Gotterson JA at [40]; see also R v BBQ [2009] QCA 166; 196 A Crim R 173 per Fraser JA at [52]. [87][2013] QCA 388. Consideration…
R v BCQ [2013] QCA 388
Citation 5 (Para 1)

…an admission of having given effect to an unnatural sexual attraction to the complainant, his daughter, was of real significance and concern. [7][2009] QCA 166.…
R v IE [2013] QCA 291
Citation 6 (Para 1)

…e convictions set aside. [1] HML v The Queen (2008) 235 CLR 334, [41] (Gummow J), [63] (Kirby J), [132], [247] (Hayne J), [506] (Kiefel J); R v BBQ [2009] QCA 166, [521], [52].…
R v TAM (No 2) [2011] QDC 141
Citation 7 (Para 1)

…See also R v Robinson [2007] QCA 349; R v BBQ [2009] QCA 166; and R v Stratford Justices; ex parte Imbert [1999] 2 Cr. App. R 276. These cases focussed on the late disclosure of material evidence by the prosecution and an application to stay a prosecution. The latter is an exceptional remedy. However, that is not…
R v FAA [2011] QCA 83
Citation 8 (Para 1)

…A number of the leading authorities are conveniently collected in R v BBQ [2] where Fraser JA said: [2](2009) 196 A Crim R 173, [2009] QCA 166.…
Jaeger v Dunsmore [2010] QDC 190
Citation 9

…R 118, applied Graham v Queensland Nursing Council [2009] QCA 280, applied Mbuzi v Torcetti [2008] QCA 231, applied R v BBQ [2009] QCA 166, considered R v ON [2009] QCA 62, considered R v NE [2005] QCA 328, applied R v Nudd (2006) 225 ALR 161, cited Rowe v Kemper [2008] QCA 175, applied COUNSEL: The appellant app…
R v BBS [2009] QCA 205
Citation 10 (Para 1)

…Counsel for the appellant submitted a particular direction was required, in light of R v BBQ [2009] QCA 166, paras 57, 58, 61, 65. In BBQ , the accused admitted to discreditable conduct. Here, the relevant material went no further than to establish what Mr Cummings fairly described as the appellant’s “mindset”. B…

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Cases Cited

R v ON [2009] QCA 62
Citation 1 (Para 1)

…by trial counsel which said that his failure to make any application or objection or seek redirections "was not for a tactical purpose". [18] R v ON [2009] QCA 62 at [23]-[24].…
R v Ellul [2008] VSCA 106
Citation 2 (Para 1)

…on relating to one count, is not itself charged as an offence. [10] R v S [1999] 2 Qd R 89 at 95. See also R v J (No 2) [1998] 3 VR 602 and R v Ellul [2008] VSCA 106 at [25]. The direction may be required though, for example, in a case where there is a danger that generalised evidence of misconduct might improperl…
HML v The Queen [2008] HCA 16
Citation 3

…cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, applied Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited R v Birks (1990) 19 NSWLR 677, cited R v BJC (2005) 13 VR 407; [2005] VSCA 154,…
Nudd v The Queen [2006] HCA 9
Citation 4

…A 1, applied Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited R v Birks (1990) 19 NSWLR 677, cited R v BJC (2005) 13 VR 407; [2005] VSCA 154, cited R v G [1997] 1 Qd R 584; [1995] QCA 517, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered R v ON [20…
R v WO [2006] QCA 21
Citation 5 (Para 1)

…fence charged, or "to conclude the particular from the general": see R v Kemp [1997] 1 Qd R 383, Emery v R (1999) 110 A Crim R 221 at 228, and R v WO [2006] QCA 21.…
R v Hopper [2005] VSCA 214
Citation 6 (Para 1)

…ned to overcome.[9] [7] HML v The Queen (2008) 235 CLR 334 at [201] per Hayne J; KRM v The Queen (2001) 206 CLR 221 at [39] per McHugh J. [8] R v BJC (2005) 13 VR 407 at 420 [37] per Byrne A-JA, a passage quoted by Heydon J in HML v The Queen at [345]. [9]See, eg, KRM v The Queen (2001) 206 CLR 221 at [37] per McHu…
R v Sheppard [2005] QCA 235
Citation 7 (Para 1)

…e could have been made to the prosecution evidence and what evidence could and would have been given by the appellant had he been so advised. [17][2005] QCA 235.…
R v BJC [2005] VSCA 154
Citation 8

…SWLR 677, cited R v BJC (2005) 13 VR 407; [2005] VSCA 154, cited R v G [1997] 1 Qd R 584; [1995] QCA 517, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered R v ON [2009] QCA 62, considered R v S [1999] 2 Qd R 89; [1998] QCA 71, cited R v Sheppard [2005…
Ali v The Queen [2005] HCA 8
Citation 9

…), s 93A, s 101 Ali v R (2005) 214 ALR 1; [2005] HCA 8, cited Browne v Dunn (1893) 6 R 67, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, applied Nudd v R (2006) 225 ALR 161; [2006]…
Nicholls v The Queen [2005] HCA 1
Citation 10

…Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, applied Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited R v Birks (1990) 19 NSWLR 677, cited R v BJC (2005) 13 VR 407; [2005] VSCA 154, cited R v G [1997] 1 Qd R 584; [1995] QCA 517, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v NE [2004…
R v NE [2003] QCA 574
Citation 11

…QCA 303, cited R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered R v ON [2009] QCA 62, considered R v S [1999] 2 Qd R 89; [1998] QCA 71, cited R v Sheppard [2005] QCA 235, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: The appellant appeared on his own behalf B G Campbell for th…
TKWJ v The Queen [2002] HCA 46
Citation 12

…ered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: The appellant appeared on his own behalf B G Campbell for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent…
KRM v The Queen [2001] HCA 11
Citation 13

…plied KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, applied Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited R v Birks (1990) 19 NSWLR 677, cited R v BJC (2005) 13 VR 407; [2005] VSCA 154, cited R v G [1997] 1 Qd R 584; [1995] QCA 517, considered…
R. v. Hilsley [1998] VSCA 143
Citation 14 (Para 1)

…ed as a partial admission relating to one count, is not itself charged as an offence. [10] R v S [1999] 2 Qd R 89 at 95. See also R v J (No 2) [1998] 3 VR 602 and R v Ellul [2008] VSCA 106 at [25]. The direction may be required though, for example, in a case where there is a danger that generalised evidence…
R v LSS [1998] QCA 303
Citation 15

…17, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered R v ON [2009] QCA 62, considered R v S [1999] 2 Qd R 89; [1998] QCA 71, cited R v Sheppard [2005] QCA 235, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: The appellan…
R v S [1998] QCA 71
Citation 16

…CA 62, considered R v S [1999] 2 Qd R 89; [1998] QCA 71, cited R v Sheppard [2005] QCA 235, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited COUNSEL: The appellant appeared on his own behalf B G Campbell for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Publi…
R v G [1995] QCA 517
Citation 17

…VSCA 154, cited R v G [1997] 1 Qd R 584; [1995] QCA 517, considered R v LSS [2000] 1 Qd R 546; [1998] QCA 303, cited R v NE [2004] 2 Qd R 328; [2003] QCA 574, considered R v ON [2009] QCA 62, considered R v S [1999] 2 Qd R 89; [1998] QCA 71, cited R v Sheppard [2005] QCA 235, considered TKWJ v The Queen (2002) 2…
Browne v Dunn 113 ER 1206
Citation 18

…v R (2005) 214 ALR 1; [2005] HCA 8, cited Browne v Dunn (1893) 6 R 67, cited HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, applied KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, cited Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, applied Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited R v Birks (1990…

Legislation Cited

Evidence Act 1977 (Qld) 18, 21AN(2)
3 mentions (from Para 1)
Criminal Law (Sexual Offences) Act 1978 (Qld) 4A
2 mentions (from Para 1)

CITATION:	R v BBQ [2009] QCA 166
PARTIES:	R v BBQ (appellant)
FILE NO/S:	CA No 167 of 2008 DC No 462 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	16 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2009, 21 April 2009
JUDGES:	Muir and Fraser JJA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Leave granted to amend the notice of appeal in accordance with the applicant’s letter filed on 6 November 2008. 2. Allow the appeal. 3. Set aside the convictions on each count. 4. Order a new trial.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant admitted to touching the complainant’s buttocks – where count 4 alleged that the appellant had touched the complainant’s vagina – where the trial judge directed the jury that the Crown case on count 4 was that the appellant touched the complainant on the vagina and buttocks – where the trial judge subsequently corrected this direction – whether the trial judge erred in directing the jury that count 4 of the indictment included the admitted touching of the complainant’s buttocks by the appellant – whether the trial judge’s correction on this point was sufficient – whether the trial judge inappropriately emphasised the appellant’s admission that he touched the complainant’s buttocks and misdirected the jury as to the use they could make of this evidence in relation to all of the counts APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant alleged that he had been denied a fair trial because the prosecution refused or failed to disclose relevant material in a timely manner and disobeyed a direct order of the District Court that the appellant be provided with certain materials –whether the alleged failure led to a miscarriage of justice to the appellant APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where the appellant argued that the prosecution misled the court in relation to the availability and relevance of a key fresh witness – whether the prosecution misled the court in this regard – whether the appellant suffered a miscarriage of justice due to the failure of his own counsel to take steps to ensure that the key fresh witness was called by the prosecution APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISCONDUCT OF COUNSEL – PARTICULAR CASES – where appellant’s counsel at trial submitted that the evidence be edited to remove any reference to alleged or actual violence by the appellant towards the complainant’s mother – where appellant…