R v Bratt - [2022] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bratt [2022] QCA 245

PARTIES:

R
v
BRATT, Jarrael Elwin
(appellant)

FILE NO/S:

CA No 26 of 2021
DC No 134 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 1 February 2021 (Lynham DCJ)

DELIVERED ON:

Date of Orders: 17 February 2022
Date of Publication of Reasons: 2 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2022

JUDGES:

McMurdo and Bond JJA and Ryan J

ORDERS:

Date of Orders: 17 February 2022

1.   Appeal allowed.

2.   Each conviction set aside.

3.   Retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after a jury trial of three counts of armed robbery – where the three robberies were committed by a principal offender and another offender – where the identity of the other offender was not in dispute – where the sole issue at trial was the identification of the appellant as the principal offender – where the Crown case was circumstantial – where the Crown adduced evidence that the appellant had removed an ankle bracelet tracking device a few days before the first robbery – where the appellant contended that evidence was irrelevant and prejudicial and should not have been admitted – whether a miscarriage of justice occurred as a result of the admission of evidence of the appellant having removed the tracking device

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after a jury trial of three counts of armed robbery – where the three robberies were committed by a principal offender and another offender – where the identity of the other offender was not in dispute – where the sole issue at trial was the identification of the appellant as the principal offender – where the Crown case was circumstantial – where the Crown adduced evidence that the appellant was arrested after the second and third robberies close to the other offender’s residence having been found up a tree which he refused to come down from for hours – where the appellant contended that evidence was irrelevant and prejudicial and should not have been admitted – whether a miscarriage of justice occurred as a result of the admission of evidence concerning the circumstances of the appellant’s arrest

Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited
R v Davari[2016] QCA 222, cited

COUNSEL:

E J Engwirda for the appellant
D Nardone for the respondent

SOLICITORS:

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

McMURDO JA: At the conclusion of the hearing of this appeal, 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 Bratt

Details

AGLC: R v Bratt [2022] QCA 245
Case: [2022] QCA 245
Decision Date: 17 February 2022

CaseChat Overview and Summary

In the case of R v Bratt, the appellant was convicted by a jury of three counts of armed robbery. The robberies were committed by the appellant and another offender, Mr Styrer, whose identity was not in dispute. The central issue at trial was the identification of the appellant as the principal offender. The Crown presented a circumstantial case, relying on various pieces of evidence to link the appellant to the crimes. The appellant contested the admissibility of specific evidence, arguing that its inclusion led to a miscarriage of justice. The contested evidence included the appellant's removal of an ankle bracelet tracking device days before the first robbery and details of the appellant's arrest near Mr Styrer's residence after the second and third robberies, where the appellant had been found up a tree and refused to come down for hours.

The legal issues before the court were whether the admission of the contested evidence amounted to a miscarriage of justice due to its irrelevance and prejudicial nature. The appellant argued that the evidence concerning the tracking device was not relevant to proving his identity as the principal offender and was prejudicial. Similarly, the appellant contended that the evidence of his arrest was irrelevant and prejudicial. The court needed to determine if these pieces of evidence were properly admitted and, if not, whether their inclusion necessitated a retrial.

The court found that the contested evidence was indeed irrelevant and prejudicial. The risk of impermissible use of this evidence was not sufficiently addressed by the directions given to the jury. The court concluded that the jury should have been instructed to disregard this evidence. Given that its admission likely contributed to the appellant's conviction, the court deemed it a miscarriage of justice. The appeal was allowed, each conviction was set aside, and a retrial was ordered.

Orders

Orders of the court

Date of Orders: 17 February 2022

1. Appeal allowed.

2. Each conviction set aside.

3. Retrial is ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant circumstances may be summarised in this way:(a)There was evidence that Mr Styrer was wearing a tracking device during the times of each of the offences. The tracking data indicated he was in the vicinity of the offence locations at the relevant times. That evidence established, beyond any real doubt, that Mr Styrer was a party to the three offences. It was uncontroversial that Mr Stryer assisted the principal offender. He had pleaded guilty to his involvement.(b)Mr Styrer's residence was searched and police located a baseball bat (which, the Crown suggested, appeared to be identical to the one used in the first robbery), a pair of red shoes (which a witness claimed to have given to the appellant and which, the Crown suggested, appeared identical to the shoes worn by the offender in the second and third robberies), and a shotgun shell.(c)A photograph showed Mr Styrer and the appellant together which was relied on to demonstrate the link between the two.(d)Evidence that the appellant had acquired a rifle shortly before the second and third robberies.(e)Evidence that the appellant owned a shirt which, the Crown suggested, appeared similar or identical to the shirt worn by the offender during the robberies.(f)Photographs of the appellant wearing a hat which, the Crown suggested, appeared similar or identical to the hat worn by the offender during the robberies.(g)The general description of the offender by various witnesses as a tall, slim, male Caucasian was, the Crown suggested, consistent with the appearance of the appellant.(h)Finally, the evidence the reception of which was impugned by the appeal, namely:(i)evidence that a few days before the first robbery, on 1 October 2018, the appellant had removed an ankle bracelet tracking device which he had been required to wear as a condition of his parole for a previous offence; and(ii)evidence that the appellant was arrested on the evening of the second and third robberies, having been found up a tree which was only 450 metres to 650 metres from Mr Styrer’s residence, and from which he refused to come down for some hours.The evidence concerning the tracking device The appellant had been inducted to parole. Parole officers gave evidence that it had been explained to him that one of the conditions of his parole was that he be fitted with a GPS tracker in the form of an ankle bracelet, and its removal would be a breach of parole conditions, and could lead to further charges for wilful damage, and a possible return to custody. The appellant’s parole officer said that she had fitted him with an ankle bracelet on 24 August 2018. She gave evidence that such bracelets were difficult to remove. Tools and quite a lot of force would be required. She gave evidence that on 1 October 2018, she received information from the electronic monitoring surveillance unit that the appellant had removed his ankle bracelet. As a result of that information a return to prison warrant was issued the next day. Prior to closing addresses there had been discussion between counsel and the trial judge in the absence of the jury as to the way in which this evidence was said to be relevant. Counsel for the Crown submitted that the evidence was just part of the circumstantial case against the appellant.

Decision

Reasons for decision

The risk of impermissible use of the evidence was not sufficiently addressed by the direction which was given and the jury should have been told to disregard the evidence. Its admission must be regarded as having occasioned a miscarriage of justice.Conclusion I agreed with the appellant’s submission that both categories of evidence were irrelevant and prejudicial. No direction was given which satisfactorily ameliorated that prejudice. In my view both grounds of appeal succeeded. The success of both appeal grounds justified the orders which the Court made. RYAN J: I concurred in the orders made by the Court on 17 February 2022 for the reasons given by Bond JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Bratt [2022] QCA 245
PARTIES:	R v BRATT, Jarrael Elwin (appellant)
FILE NO/S:	CA No 26 of 2021 DC No 134 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 1 February 2021 (Lynham DCJ)
DELIVERED ON:	Date of Orders: 17 February 2022 Date of Publication of Reasons: 2 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2022
JUDGES:	McMurdo and Bond JJA and Ryan J
ORDERS:	Date of Orders: 17 February 2022 1. Appeal allowed. 2. Each conviction set aside. 3. Retrial is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after a jury trial of three counts of armed robbery – where the three robberies were committed by a principal offender and another offender – where the identity of the other offender was not in dispute – where the sole issue at trial was the identification of the appellant as the principal offender – where the Crown case was circumstantial – where the Crown adduced evidence that the appellant had removed an ankle bracelet tracking device a few days before the first robbery – where the appellant contended that evidence was irrelevant and prejudicial and should not have been admitted – whether a miscarriage of justice occurred as a result of the admission of evidence of the appellant having removed the tracking device CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted after a jury trial of three counts of armed robbery – where the three robberies were committed by a principal offender and another offender – where the identity of the other offender was not in dispute – where the sole issue at trial was the identification of the appellant as the principal offender – where the Crown case was circumstantial – where the Crown adduced evidence that the appellant was arrested after the second and third robberies close to the other offender’s residence having been found up a tree which he refused to come down from for hours – where the appellant contended that evidence was irrelevant and prejudicial and should not have been admitted – whether a miscarriage of justice occurred as a result of the admission of evidence concerning the circumstances of the appellant’s arrest Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44, cited Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2, cited R v Davari[2016] QCA 222, cited
COUNSEL:	E J Engwirda for the appellant D Nardone for the respondent
SOLICITORS:	Creevey Russell Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent