R v Braithwaite - [2004] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v Braithwaite [2004] QCA 123

PARTIES:

R
v
BRAITHWAITE, Marcus Lee

(appellant)

FILE NO/S:

CA No 48 of 2004

DC No 123 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

23 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2004

JUDGES:

McMurdo P, McPherson JA and Holmes J

Separate reasons for judgment of each member of the Court, McMurdo P and Holmes J concurring as to the orders made, McPherson JA dissenting

ORDERS:

Appeal allowed and a new trial ordered1.

The appellant is granted bail in the same terms as his prior grant of bail on this charge2.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE - CONFESSIONS AND ADMISSIONS – whether evidence of conversation between appellant and police, obtained without complying with Police Powers and Responsibilities Act, inadmissible by statute or in exercise of common law discretion – whether appellant excluded from scope of the Act by s 246(2)(b)

CRIMINAL LAW – EVIDENCE - IDENTIFICATION EVIDENCE – whether trial judge should have given a Domican direction – whether proviso should be applied

Police Powers and Responsibilities Act 2002 (Qld), s 246, s 249(1), s 258(1)
Transport Operations (Road Use Management) Act 1995 (Qld), s 46

Bunning v Cross (1978) 141 CLR 54, cited
Domican v The Queen (1992) 173 CLR 555, applied
Festa v The Queen (2001) 208 CLR 593, considered

R v Zullo [1993] 2 Qd R 572, considered

COUNSEL:

S R Lynch for the appellant

M J Copley for the respondent

SOLICITORS:

Michael Mason Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I have read the reasons for judgment of McPherson JA in which the facts and issues are clearly stated. I will repeat only those necessary to explain my reasons for reaching a different conclusion. It is my view that the appeal against conviction must be allowed.

The adequacy of the judicial direction on identification

The learned primary judge gave the following direction on identification.

"The next question is whether the prosecution has proven that it was the accused man who was driving the vehicle at that time. Now, there's been a lot said about identification evidence and indeed identification evidence needs to be approached very carefully. By identification evidence I mean where along comes a witness and says, "Yes, I identify this person. I saw them to do this. I recognised them or I recognised them later, that was definitely the person who did it." That's identification evidence and that needs to be – evidence like that needs to be approached carefully because there have been some notorious cases of misidentification and an identification witness like that can be very convincing because they truly believe that what they're saying is true.
With the identification evidence such as that a fact finding Tribunal, be it a jury or a judicial officer sitting alone, always needs to have a good look at…

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 Braithwaite

Details

AGLC: R v Braithwaite [2004] QCA 123
Case: [2004] QCA 123
Decision Date: 23 April 2004

CaseChat Overview and Summary

The case of R v Braithwaite involved the appellant, who was on trial for an offence. The primary issue before the court was the admissibility of certain evidence obtained during a conversation between the appellant and the police. The conversation took place without compliance with the provisions of the Police Powers and Responsibilities Act. The appellant argued that this evidence should be excluded either by statute or at the discretion of the court. Additionally, the court had to determine whether the appellant was excluded from the scope of the Act by section 246(2)(b). Another significant issue was whether the trial judge should have provided a Domican direction regarding the identification evidence and whether the proviso should have been applied.

The court examined the provisions of the Police Powers and Responsibilities Act and concluded that the evidence obtained during the conversation was inadmissible due to non-compliance with the Act. The court also determined that the appellant was not excluded from the scope of the Act by section 246(2)(b). Furthermore, the court found that the trial judge should have given a Domican direction regarding the identification evidence and that the proviso should have been applied. The court held that the failure to do so was a significant error, which had the potential to affect the outcome of the trial. Consequently, the court allowed the appeal and ordered a new trial.

The court's decision was based on a thorough analysis of the relevant statutory provisions and case law. The court found that the failure to comply with the Police Powers and Responsibilities Act and the failure to provide a Domican direction constituted a significant error that warranted a new trial. The court also noted that the exclusion of the inadmissible evidence would likely have a substantial impact on the outcome of the trial. Therefore, the court ordered a new trial to ensure that the appellant received a fair trial.

The final orders of the court were that the appeal was allowed and a new trial was ordered. The appellant was granted bail in the same terms as his prior grant of bail on this charge. This decision highlights the importance of complying with statutory provisions and the need for trial judges to provide appropriate directions to ensure a fair trial.

Orders

Orders of the court

Appeal allowed and a new trial ordered1.

The appellant is granted bail in the same terms as his prior grant of bail on this charge2.

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 Braithwaite [2004] QCA 123
PARTIES:	R v BRAITHWAITE, Marcus Lee (appellant)
FILE NO/S:	CA No 48 of 2004 DC No 123 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Kingaroy
DELIVERED ON:	23 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2004
JUDGES:	McMurdo P, McPherson JA and Holmes J Separate reasons for judgment of each member of the Court, McMurdo P and Holmes J concurring as to the orders made, McPherson JA dissenting
ORDERS:	Appeal allowed and a new trial ordered1. The appellant is granted bail in the same terms as his prior grant of bail on this charge2.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE - CONFESSIONS AND ADMISSIONS – whether evidence of conversation between appellant and police, obtained without complying with Police Powers and Responsibilities Act, inadmissible by statute or in exercise of common law discretion – whether appellant excluded from scope of the Act by s 246(2)(b) CRIMINAL LAW – EVIDENCE - IDENTIFICATION EVIDENCE – whether trial judge should have given a Domican direction – whether proviso should be applied Police Powers and Responsibilities Act 2002 (Qld), s 246, s 249(1), s 258(1) Transport Operations (Road Use Management) Act 1995 (Qld), s 46 Bunning v Cross (1978) 141 CLR 54, cited Domican v The Queen (1992) 173 CLR 555, applied Festa v The Queen (2001) 208 CLR 593, considered R v Zullo [1993] 2 Qd R 572, considered
COUNSEL:	S R Lynch for the appellant M J Copley for the respondent
SOLICITORS:	Michael Mason Solicitors for the appellant Director of Public Prosecutions (Queensland) for the respondent