R v BGT and BA

[2024] QSCPR 6

SUPREME COURT OF QUEENSLAND

CITATION:	R v BGT and BA [2024] QSCPR 6
PARTIES:	THE KING
(respondent)
v BGT & BA
(first and second applicant)
FILE NO:	Indictment No 236 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application under s 590AA of the Criminal Code
DELIVERED ON:	5 February 2024, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2024
JUDGE:	Bowskill CJ
ORDERS:	The subpoena issued to the witness, BN, is set aside.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – COMPETENCE AND COMPELLABILITY – where the prosecution seeks to compel
a co-offender to give evidence at the separate trial of two other
co-offenders – where the proposed witness has been arraigned
on the charges against him, entered pleas of guilty and the allocutus has been administered, but he has not yet been
sentenced – whether the witness is compellable at the trial of his co-offenders – whether the subpoena ought to be set aside
on discretionary grounds
Criminal Code, s 590AA Evidence Act 1977 (Qld), s 8(1)
R v Pipe (1967) 51 Cr App R 17 R v Turner (1975) 61 Cr App R 67 R v Verrall [2012] QCA 310 R v Nerbas [2012] 1 Qd R 362 R v Gibb [2018] QCA 120
COUNSEL:	D Caruana and G M Elmore for the first applicant L Reece for the second applicant J D Finch for the respondent E Whitton for the witness
SOLICITORS:	ACGL Lawyers for the first applicant Legal Aid Queensland for the second applicant Office of the Director of Public Prosecutions for the respondent
Wallace O’Hagan Lawyers for the witness

1. The defendants are charged, on indictment number 236 of 2023, with serious offences arising out of a home invasion in the early hours of 16 August 2021, including burglary by breaking in the night while armed and in company, and four counts of attempted murder, or alternatively, malicious act with intent.

2. There is a third young person, who I will call BN, who was also charged with offences arising out of the circumstances on this night. It is alleged BN travelled to the place where the home invasion is alleged to have occurred in a stolen car with the defendants and another person. It is said BN stayed in the car with that other person while the defendants went into the house. He was charged, by indictment presented in the Childrens Court, with burglary and stealing, unlawful use of a motor vehicle (in relation to the stealing of the car) and then a further count of burglary, with various circumstances of aggravation, and four counts of malicious act with intent (in relation to the home invasion and the offences of violence alleged to have been committed there). As to the latter offences committed in the home, BN has accepted criminal responsibility as a party.

3. BN was arraigned on that indictment on 23 November 2023 and pleaded guilty to each count on the indictment. The allocutus was administered. The judge did not proceed to sentence BN on that day,…