R v Brease - [2013] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brease [2013] QCA 249

PARTIES:

R
v
BREASE, Aaron Edward
(appellant/applicant)

FILE NO/S:

CA No 134 of 2012
SC No 211 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2013

JUDGES:

Margaret McMurdo P and Fraser JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application to adduce further evidence refused.1.

Appeal against conviction dismissed.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of one count of murder – where the prosecution evidence included CCTV footage of a suspect in the vicinity at the time of the killing – where two friends of the appellant gave evidence as to the similarities between the suspect in the footage and the appellant – where the appellant contended the evidence was irrelevant and inadmissible or alternatively should have been excluded in the exercise of the unfairness discretion – where the trial judge determined that the evidence was admissible identification evidence, consistent with Festa v The Queen – whether the trial judge erred in admitting the evidence – whether miscarriage of justice occurred

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant relied on pre-trial reports by a photogrammetry expert as to the height of the suspect in the footage – where, subsequent to the trial, the expert became aware that the geometry of pixels in the footage was distorted by video post-processing software – where the expert produced a further report which altered his estimate of the height of the suspect in the footage – where the appellant sought leave to adduce the further evidence of the expert as fresh evidence – where the appellant contended that the unavailability of the fresh evidence at trial caused a miscarriage of justice – whether the further evidence was fresh evidence – whether there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence was before it at trial – whether miscarriage of justice occurred

Criminal Code 1899 (Qld), s 668E(1)

Dupas v The Queen (2012) 218 A Crim R 507; [2012] VSCA 328, cited
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, discussed
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, cited
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, cited
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
R v Christie [1914] AC 545, cited

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 Brease

Details

AGLC: R v Brease [2013] QCA 249
Case: [2013] QCA 249
Decision Date: 6 September 2013

CaseChat Overview and Summary

In the case of R v Brease, the appellant was convicted of one count of murder. The primary legal issue was whether the trial judge erred in admitting evidence which the appellant claimed was irrelevant, inadmissible, or should have been excluded on grounds of unfairness. This evidence included CCTV footage of a suspect in the vicinity at the time of the killing, and testimony from two friends of the appellant who identified the suspect as resembling the appellant. The appellant argued that this evidence should not have been admitted under the principles set out in Festa v The Queen.

The court found that the trial judge did not err in admitting the identification evidence. The CCTV footage was deemed relevant to the timeline and location of the crime, and the similarities between the suspect and the appellant were within the province of the jury to assess. The court held that the evidence did not amount to a miscarriage of justice, as it did not unfairly prejudice the appellant. The court also found that the fresh evidence regarding the distortion of the footage, which the appellant sought to introduce post-trial, was not fresh evidence in the legal sense and did not meet the threshold for a miscarriage of justice.

As a result, the application to adduce further evidence was refused. The appeal against the conviction was also dismissed, affirming the trial judge’s decisions on both the admissibility of evidence and the absence of a miscarriage of justice.

Orders

Orders of the court

Application to adduce further evidence refused.1.

Appeal against conviction dismissed.2.

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 Brease [2013] QCA 249
PARTIES:	R v BREASE, Aaron Edward (appellant/applicant)
FILE NO/S:	CA No 134 of 2012 SC No 211 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	7 May 2013
JUDGES:	Margaret McMurdo P and Fraser JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application to adduce further evidence refused.1. Appeal against conviction dismissed.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of one count of murder – where the prosecution evidence included CCTV footage of a suspect in the vicinity at the time of the killing – where two friends of the appellant gave evidence as to the similarities between the suspect in the footage and the appellant – where the appellant contended the evidence was irrelevant and inadmissible or alternatively should have been excluded in the exercise of the unfairness discretion – where the trial judge determined that the evidence was admissible identification evidence, consistent with Festa v The Queen – whether the trial judge erred in admitting the evidence – whether miscarriage of justice occurred CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant relied on pre-trial reports by a photogrammetry expert as to the height of the suspect in the footage – where, subsequent to the trial, the expert became aware that the geometry of pixels in the footage was distorted by video post-processing software – where the expert produced a further report which altered his estimate of the height of the suspect in the footage – where the appellant sought leave to adduce the further evidence of the expert as fresh evidence – where the appellant contended that the unavailability of the fresh evidence at trial caused a miscarriage of justice – whether the further evidence was fresh evidence – whether there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence was before it at trial – whether miscarriage of justice occurred Criminal Code 1899 (Qld), s 668E(1) Dupas v The Queen (2012) 218 A Crim R 507; [2012] VSCA 328, cited Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72, discussed Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, cited Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, cited Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited R v Christie [1914] AC 545, cited