R v BBR

[2009] QCA 178

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBR [2009] QCA 178

PARTIES:

R
v
BBR
(appellant)

FILE NO:

CA No 294 of 2008
DC No 2416 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 15 May 2009
Reasons delivered on 19 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2009

JUDGES:

Keane and Chesterman JJA and A Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 15 May 2009

1.    Appeal allowed.

2.    Convictions in respect of counts 3, 5, 6, 7, and 9 are quashed and retrial in respect of those counts ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where one of the complainants gave evidence but was deemed not competent to take an oath – where pre-trial judge failed to explain the duty to speak the truth as required by s 9B(3) of the Evidence Act 1977 (Qld) – whether this amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where trial judge gave directions to the jury on circumstantial and propensity evidence – whether these directions were inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the testimony of one of the complainants appeared to be internally inconsistent – where case turned on basis of complainant’s testimony – whether the jury was adequately directed as to the need to scrutinise the complainant’s evidence

Criminal Code 1899 (Qld), s 668E(1A)
Evidence Act 1977 (Qld), s 9, s 9A, s 9B, s 21AK(3), s 21AU, s 93A
Oaths Act 1867 (Qld), s 37
Oaths Act Amendment Act 1884 (Qld), s 2

Lauv The Queen (1991) 6 WAR 30; (1991) 58 A Crim R 390, applied
R v Brooks (1998) 44 NSWLR 121; (1998) 102 A Crim R 367, applied
R v Brown [1977] Qd R 220, distinguished
R v Hayes [1977] 1 WLR 234, considered
R v Starrett (2002) 82 SASR 115; [2002] SASC 175, applied
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied

COUNSEL:

C L Morgan for the appellant
M J Copley SC for the respondent

SOLICITORS:

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

1. KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by Chesterman JA.  I agree with those reasons.

1. CHESTERMAN JA

   :  On 30 October 2008 the appellant was convicted, after a three day trial, of one count of indecent treatment of his niece S on

   
   

   29 December 2005, and four counts of…