R v BBU - [2009] QCA 385

SUPREME COURT OF QUEENSLAND

CITATION:

R v BBU [2009] QCA 385

PARTIES:

R
v
BBU
(applicant)

FILE NO/S:

CA No 194 of 2009
DC No 561 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

15 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2009

JUDGES:

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

ORDER:

The appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURES – MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE – VICTIM IMPACT STATEMENT – the appellant was convicted after a jury trial of two counts of rape – the complainant was a friend of the appellant's daughter – the victim impact statement was in existence before the end of the prosecution case but it was not disclosed at that stage – the victim impact statement included information about the mistreatment of the victim by the appellant's daughter – the appellant contends that the victim impact statement could have been used to cross-examine the complainant as to her credit and reliability, and to allege malice and bias – whether the appellant lost some forensic advantage – whether the appeal should be allowed

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – the prosecution did not disclose the victim impact statement until the verdicts were returned – the prosecutor states this was in line with 'office policy' – the appellant contends that the prosecutor's actions were inconsistent with the proper practice identified in case law and statute – whether the prosecutorial disclosure requirements were met

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – JUDGE'S SUMMING UP – CONSIDERATION OF THE SUMMING UP AS A WHOLE – the appellant contends that he was denied a fair trial because the trial judge's summing-up lacked balance because it emphasised evidence favourable to the prosecution, failed to mention evidence favourable to the appellant; and failed to direct the jury with respect to a reasonable inference favourable to the appellant – the trial was short and the judge's summing up concluded on the second day – whether the summing up lacked balance – whether the appeal should be allowed

Criminal Code 1899 (Qld), s 590AB, s 590AD, s 590AL
Criminal Law (Sexual Offences) Act 1978 (Qld), s 4

B v The Queen (1992) 175 CLR 599; [1992] HCA 68, considered
R v Cornwell [2009] QCA 294, considered
R v HAU [2009] QCA 165, considered
R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited
R v Spizzirri [2001] 2 Qd R 686; [2000] QCA 469, cited
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited

COUNSEL:

F D Richards for the appellant
D Meredith for the respondent

SOLICITORS:

Legal…

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 BBU

Details

AGLC: R v BBU [2009] QCA 385
Case: [2009] QCA 385
Decision Date: 15 December 2009

CaseChat Overview and Summary

The appellant, convicted of two counts of rape, appealed against his conviction, contending that the trial process was flawed in several respects. The complainant was a friend of the appellant's daughter. The appellant argued that the failure to disclose a victim impact statement until after the prosecution's case had concluded deprived him of a forensic advantage. The statement included details about the mistreatment of the victim by the appellant's daughter, which the appellant claimed could have been used to challenge the credibility of the complainant and to allege bias and malice. Additionally, the appellant argued that the late disclosure of the statement was inconsistent with prosecutorial disclosure obligations. He further contended that the summing-up by the trial judge was imbalanced, as it emphasised evidence favourable to the prosecution while omitting evidence favourable to the appellant and failing to instruct the jury on a reasonable inference that could have benefited him.

The legal issues before the court included whether the failure to disclose the victim impact statement before the end of the prosecution's case resulted in the appellant losing a forensic advantage, and whether this affected the fairness of the trial. Another issue was whether the prosecutor's conduct in delaying disclosure was consistent with the requirements of case law and statute. Lastly, the court had to determine if the summing-up by the trial judge was balanced and whether it denied the appellant a fair trial by not mentioning all relevant evidence and inferences.

The court found that the late disclosure of the victim impact statement did not deprive the appellant of a significant forensic advantage, as the content of the statement was not crucial to the trial's outcome. The court also held that the prosecutor's actions did not breach the obligations set out in the relevant statutes and case law. Furthermore, the court concluded that the summing-up, when considered as a whole, was balanced and did not unfairly prejudice the appellant. The court found no grounds to allow the appeal.

The appeal was dismissed. The conviction and sentence of the appellant were upheld.

Orders

Orders of the court

The appeal is 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BBU [2009] QCA 385
PARTIES:	R v BBU (applicant)
FILE NO/S:	CA No 194 of 2009 DC No 561 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	15 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2009
JUDGES:	McMurdo P, Fraser JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal is dismissed
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURES – MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE – VICTIM IMPACT STATEMENT – the appellant was convicted after a jury trial of two counts of rape – the complainant was a friend of the appellant's daughter – the victim impact statement was in existence before the end of the prosecution case but it was not disclosed at that stage – the victim impact statement included information about the mistreatment of the victim by the appellant's daughter – the appellant contends that the victim impact statement could have been used to cross-examine the complainant as to her credit and reliability, and to allege malice and bias – whether the appellant lost some forensic advantage – whether the appeal should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – the prosecution did not disclose the victim impact statement until the verdicts were returned – the prosecutor states this was in line with 'office policy' – the appellant contends that the prosecutor's actions were inconsistent with the proper practice identified in case law and statute – whether the prosecutorial disclosure requirements were met APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – JUDGE'S SUMMING UP – CONSIDERATION OF THE SUMMING UP AS A WHOLE – the appellant contends that he was denied a fair trial because the trial judge's summing-up lacked balance because it emphasised evidence favourable to the prosecution, failed to mention evidence favourable to the appellant; and failed to direct the jury with respect to a reasonable inference favourable to the appellant – the trial was short and the judge's summing up concluded on the second day – whether the summing up lacked balance – whether the appeal should be allowed Criminal Code 1899 (Qld), s 590AB, s 590AD, s 590AL Criminal Law (Sexual Offences) Act 1978 (Qld), s 4 B v The Queen (1992) 175 CLR 599; [1992] HCA 68, considered R v Cornwell [2009] QCA 294, considered R v HAU [2009] QCA 165, considered R v Mogg (2000) 112 A Crim R 417; [2000] QCA 244, cited R v Spizzirri [2001] 2 Qd R 686; [2000] QCA 469, cited RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
COUNSEL:	F D Richards for the appellant D Meredith for the respondent
SOLICITORS:	Legal…