R v Bisht - [2013] QCA 238

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bisht [2013] QCA 238

PARTIES:

R
v
BISHT, Anirudh
(appellant)

FILE NO/S:

CA No 312 of 2012
DC No 70 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2013

JUDGES:

Margaret McMurdo P and Holmes and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction allowed.1.

Conviction quashed.2.

Re-trial ordered.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the appellant was convicted of raping a woman at a skateboard park and sentenced to seven years imprisonment – where the appellant contended that the guilty verdict was unreasonable or cannot be supported having regard to the evidence – where the only issue at trial was consent – where the complainant's evidence was unchallenged by cross-examination and was supported by her injuries, timely complaint and distressed condition – whether the verdict was unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant made a number of written and oral submissions including that the trial judge erred in not allowing him to place the complainant's medical records and a psychiatric report before the jury, that the prosecution coached witnesses, that the prosecution should have led CCTV footage and failed to call relevant witnesses, that there was a failure to obtain a statement from a police officer about conversations had with the complainant which revealed inconsistencies in her account, that portions of his record of interview were wrongly omitted and that the appeal record book is not a complete record of the events at trial – where the crux of these contentions was that the jury should have believed the appellant instead of the complainant – where relevant witnesses were not cross-examined and no evidence was presented to support some of these assertions – whether any of the above grounds, either individually or in combination, amount to an error of law or demonstrate a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the complainant was declared a special witness under s 21A(1)(b) Evidence Act 1977 (Qld) and a protected witness within the meaning of that term in s 21M(1)(b) by reason of her mental impairment (major and chronic paranoid schizophrenic illness) – where it was ordered under s 21A(2)(d) that a support person be present while the complainant gave evidence – where the complainant looked to the support person many times for reassurance while giving evidence – where the appellant was self-represented at trial – where the trial judge directed the jury in a…

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 Bisht

Details

AGLC: R v Bisht [2013] QCA 238
Case: [2013] QCA 238
Decision Date: 28 August 2013

CaseChat Overview and Summary

The appellant in this case, Bisht, appealed against his conviction for raping a woman at a skateboard park, for which he was sentenced to seven years imprisonment. The central issue was the reasonableness of the verdict in light of the evidence presented. The only contested matter at trial was consent, which the complainant testified was absent. Her account was uncorroborated but was supported by her injuries, the immediacy of her complaint, and her emotional state. Bisht argued that the jury's verdict was unreasonable or unsupported by the evidence.

The court also considered whether the trial proceedings constituted a miscarriage of justice. Bisht claimed multiple errors by the trial judge, including the exclusion of certain evidence and the alleged coaching of witnesses by the prosecution. However, the court found that these claims were unsubstantiated, as there was no evidence to support them. The court held that the trial judge's general directions to the jury, while not specifically mentioning the presence of the complainant's support person, were sufficient under the circumstances.

The court found that the trial judge's failure to specifically refer to the support person in the jury directions did not amount to a substantial miscarriage of justice, as the directions were generally adequate. However, the court did find that the failure to direct the jury on this specific aspect constituted a non-direction that was material to the case, resulting in a miscarriage of justice. Consequently, the appeal against the conviction was allowed, the conviction was quashed, and a re-trial was ordered.

The final orders were to allow the appeal against the conviction, quash the conviction, and order a re-trial for Bisht.

Orders

Orders of the court

Appeal against conviction allowed.1.

Conviction quashed.2.

Re-trial ordered.3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Bisht [2013] QCA 238
PARTIES:	R v BISHT, Anirudh (appellant)
FILE NO/S:	CA No 312 of 2012 DC No 70 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2013
JUDGES:	Margaret McMurdo P and Holmes and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction allowed.1. Conviction quashed.2. Re-trial ordered.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the appellant was convicted of raping a woman at a skateboard park and sentenced to seven years imprisonment – where the appellant contended that the guilty verdict was unreasonable or cannot be supported having regard to the evidence – where the only issue at trial was consent – where the complainant's evidence was unchallenged by cross-examination and was supported by her injuries, timely complaint and distressed condition – whether the verdict was unreasonable or cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant made a number of written and oral submissions including that the trial judge erred in not allowing him to place the complainant's medical records and a psychiatric report before the jury, that the prosecution coached witnesses, that the prosecution should have led CCTV footage and failed to call relevant witnesses, that there was a failure to obtain a statement from a police officer about conversations had with the complainant which revealed inconsistencies in her account, that portions of his record of interview were wrongly omitted and that the appeal record book is not a complete record of the events at trial – where the crux of these contentions was that the jury should have believed the appellant instead of the complainant – where relevant witnesses were not cross-examined and no evidence was presented to support some of these assertions – whether any of the above grounds, either individually or in combination, amount to an error of law or demonstrate a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the complainant was declared a special witness under s 21A(1)(b) Evidence Act 1977 (Qld) and a protected witness within the meaning of that term in s 21M(1)(b) by reason of her mental impairment (major and chronic paranoid schizophrenic illness) – where it was ordered under s 21A(2)(d) that a support person be present while the complainant gave evidence – where the complainant looked to the support person many times for reassurance while giving evidence – where the appellant was self-represented at trial – where the trial judge directed the jury in a…