R v Bobart - [2012] QCA 33

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bobart [2012] QCA 33

PARTIES:

R
v
BOBART, Lynette Brodwyn
(appellant)

FILE NO/S:

CA No 130 of 2011
DC No 315 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

2 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2011

JUDGES:

Fraser and White JJA, and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant found guilty of one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance – where sentenced to six years imprisonment and disqualified from holding or obtaining driver’s licence for four years – where driver of vehicle hit and killed another motorist – where driving on wrong side of road – where driving whilst intoxicated – where identity of driver in question – where CCTV viewed clearer at police station – where CCTV inconclusive – where eyewitness evidence available – whether, upon whole of evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied
R v PAH[2008] QCA 265, applied

COUNSEL:

M J Byrne QC, with M Van der Walt, for the appellant
G P Cash for the respondent

SOLICITORS:

Fowler Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: On 26 May 2011 the appellant was found guilty by a jury of one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance. She was sentenced to six years imprisonment and it was ordered that she be disqualified from holding or obtaining a driver’s licence for four years.

The appellant contends that the verdict of the jury was against the whole of the evidence, thereby rendering the verdict unsafe and unsatisfactory. That invokes the ground of appeal in s 668E(1) of the Criminal Code that the verdict of the jury is unreasonable. Consideration of that ground of appeal requires the Court to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[1] So far as is presently relevant, the approach to the Court’s task was described by Mackenzie AJA in R v PAH [2008] QCA 265 at [29]-[30] as follows:

“The relevant principles for determining whether the conviction is unsafe and unsatisfactory, to use the former terminology, are set out in M v R and MFA v R. M v R establishes a number of propositions about the exercise by appellate courts of the powers conferred by

s 668E of the

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 Bobart

Details

AGLC: R v Bobart [2012] QCA 33
Case: [2012] QCA 33
Decision Date: 2 March 2012

CaseChat Overview and Summary

In the case of R v Bobart, the appellant was found guilty of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance. The appellant was sentenced to six years imprisonment and disqualified from holding or obtaining a driver’s licence for four years. The appellant was the driver of a vehicle that hit and killed another motorist, and was driving on the wrong side of the road at the time of the incident. The identity of the driver was in question, and CCTV footage was viewed at the police station, but was found to be inconclusive. Eyewitness evidence was available, but it was unclear whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.

The legal issues in this case centred around the sufficiency of the evidence to support the jury’s verdict. The appellant argued that the evidence was insufficient to prove his guilt beyond reasonable doubt, and that the verdict was unreasonable or insupportable having regard to the evidence. The court was required to determine whether the evidence was sufficient to support the jury’s verdict, and whether the verdict was open to the jury upon the whole of the evidence.

The court found that the evidence was sufficient to support the jury’s verdict, and that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The court noted that while the CCTV footage was inconclusive, the eyewitness evidence was clear and reliable, and provided sufficient evidence to support the jury’s verdict. The court also noted that the appellant’s driving on the wrong side of the road and his intoxication were strong indicators of his guilt. The court dismissed the appeal against conviction, and upheld the appellant’s conviction and sentence.

The court ordered that the appeal against conviction be dismissed. The appellant’s conviction and sentence were upheld, and he remained sentenced to six years imprisonment and disqualified from holding or obtaining a driver’s licence for four years. The court found that the evidence was sufficient to support the jury’s verdict, and that the verdict was open to the jury upon the whole of the evidence.

Orders

Orders of the court

Appeal against conviction dismissed.

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 Bobart [2012] QCA 33
PARTIES:	R v BOBART, Lynette Brodwyn (appellant)
FILE NO/S:	CA No 130 of 2011 DC No 315 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	2 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2011
JUDGES:	Fraser and White JJA, and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant found guilty of one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance – where sentenced to six years imprisonment and disqualified from holding or obtaining driver’s licence for four years – where driver of vehicle hit and killed another motorist – where driving on wrong side of road – where driving whilst intoxicated – where identity of driver in question – where CCTV viewed clearer at police station – where CCTV inconclusive – where eyewitness evidence available – whether, upon whole of evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied R v PAH[2008] QCA 265, applied
COUNSEL:	M J Byrne QC, with M Van der Walt, for the appellant G P Cash for the respondent
SOLICITORS:	Fowler Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent