R v Bricola - [2017] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bricola [2017] QCA 51

PARTIES:

R
v
BRICOLA, Carl Shane
(appellant)

FILE NO/S:

CA No 131 of 2016
SC No 4 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 12 May 2016

DELIVERED ON:

31 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2017

JUDGES:

Gotterson and Morrison JJA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

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 by a jury of murder – where the appellant contends a number of events during the trial had a cumulative prejudicial effect on the defence – where the Crown’s opening address erroneously implied the appellant had stabbed another person – where the implication was not corrected or explained immediately – where the trial judge admitted evidence, over objection, of the appellant referring to himself as a “gangster” – where the trial judge directed the jury to overcome the prejudice – where the appellant contends a recording of a police interview admitted at trial insinuated the appellant was known to police – where defence counsel at trial chose not to seek a direction – where, in his evidence-in-chief, the appellant referred to a correctional centre as the place where he met a witness – where defence counsel at trial chose neither to apply to discharge the jury nor to seek a direction – whether the aforementioned events had an unfair prejudicial effect on the defence either individually or cumulatively– whether the appellant was deprived of a fair trial – whether there was a miscarriage of justice

APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant’s case at trial relied on self-defence – where the defence was critically dependent upon the location of two knives within the passenger side door of the vehicle – where the main Crown witness provided statements to police that the appellant had a tendency of keeping his knife pouch in the passenger side door and that he was unaware of the location of the knife leading up to the offence – where defence counsel did not cross-examine the Crown witness in relation to these statements – where the Crown witness’ evidence at trial was inconclusive on the point – whether there was a reasonable explanation for the failure of defence counsel to cross-examine the Crown witness – whether the failure deprived the appellant of a significant possibility of acquittal

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited
R v Fraser[2001] QCA 187, considered
R v Genrich [2001] QCA 466, cited
R v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited
R v…

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 Bricola

Details

AGLC: R v Bricola [2017] QCA 51
Case: [2017] QCA 51
Decision Date: 31 March 2017

CaseChat Overview and Summary

In the case of R v Bricola, the appellant was convicted by a jury of murder and appealed against his conviction. The appellant argued that several incidents during the trial had a cumulative prejudicial effect on the defence and deprived him of a fair trial. These incidents included the Crown's opening address erroneously implying the appellant had stabbed another person, the admission of evidence of the appellant referring to himself as a "gangster," and the admission of a recording of a police interview which insinuated the appellant was known to police. The appellant also argued that defence counsel's failure to cross-examine a Crown witness on certain statements amounted to ineffective assistance of counsel.

The court considered whether these events had an unfair prejudicial effect on the defence either individually or cumulatively and whether they deprived the appellant of a fair trial or amounted to a miscarriage of justice. The court also examined whether there was a reasonable explanation for defence counsel's failure to cross-examine the Crown witness and whether this failure deprived the appellant of a significant possibility of acquittal.

The court found that while the word "gangster" could have contributed to an unfavourable picture of the appellant, the possibility of prejudice was acknowledged by the trial judge and addressed in the direction given to the jury. The court also found that defence counsel's failure to cross-examine the Crown witness was not unreasonable given the circumstances of the case. The court ultimately found that the appellant was not deprived of a fair trial and dismissed the appeal.

The orders of the court were to dismiss the appeal against conviction and sentence.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Admitted evidence: At the commencement of the trial, the learned trial judge ruled against an application that had been earlier made by defence counsel.[28] The application was for the exclusion from Mr Yoelu’s evidence of the conversation between him and the appellant in which the latter replied: “Well I told him not to fuck with a gangster.”[29][28]The application was made in March 2016. Written submissions had been filed and exchanged prior to trial: AB289-294; AB295-298.[29]The application was made in circumstances where, in Mr Yoelu’s statement made to police on 4 November 2014 at the Weipa CIB, he had described the appellant’s reply as: “Well don’t fuck with a gangster”. However, the deposition for his trial evidence indicated that he would testify that the reply was in the terms of the reply to which objection was taken. A number of grounds for exclusion were advanced before the learned trial judge. However, on appeal, the focus was on the word “gangster”. Defence counsel had submitted that the use of that word might cause the jury to speculate impermissibly about whether his client had a criminal history or other reputation for violence.[30][30]Defendant’s Outline of Submissions, para 29: AB294. His Honour was of the view that the risk of prejudice from the use of word “gangster” was “very low”. He noted that, in contemporary usage, the word had a connotation of toughness but did not carry “the opprobrium of actually being a gangland criminal”. He considered that any prejudice could be adequately catered for by an appropriate direction to the jury.[31] His Honour gave the intimated direction to the jury during his summing up.[32][31]AB65 ll30-39.[32]AB231 l43 – AB232 l15. Counsel for the appellant stressed that this ground of appeal did not involve a “back door” challenge to the ruling. He accepted that, in the circumstances, there was no other ruling his Honour could have made.[33] He explained that his purpose in referring to this evidence was to illustrate that when the appellant began his evidence, the jury would have had an unfavourable picture of him as a “self-indulged gangster” who regularly carried three knives.[34][33]AT 1-6 ll18-20.[34]AT 1-6 l34 – AT 1-7 l2. I would accept that the word “gangster”, without any qualification, could have contributed to an unfavourable picture of the appellant. However, it was a contribution arising from evidence of a contemporaneous conversation with the appellant that was relevant. The appellant did not deny the conversation. The possibility of prejudice was acknowledged by the learned trial judge. It was addressed in explicit terms in the direction given to the jury. The roadside recording: The last police witness called in the prosecution case was Detective Senior Constable, J M Goodwin, who was stationed at Weipa. She was the investigating officer for the matter. In the early morning of 4 November 2014, she drove from Weipa to Coen. She and other officers, including Senior Constable G Doyle, then travelled to the Yarraden Station turn off. She approached the appellant with a digital recorder activated.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Bricola [2017] QCA 51
PARTIES:	R v BRICOLA, Carl Shane (appellant)
FILE NO/S:	CA No 131 of 2016 SC No 4 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Cairns – Date of Conviction: 12 May 2016
DELIVERED ON:	31 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2017
JUDGES:	Gotterson and Morrison JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
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 by a jury of murder – where the appellant contends a number of events during the trial had a cumulative prejudicial effect on the defence – where the Crown’s opening address erroneously implied the appellant had stabbed another person – where the implication was not corrected or explained immediately – where the trial judge admitted evidence, over objection, of the appellant referring to himself as a “gangster” – where the trial judge directed the jury to overcome the prejudice – where the appellant contends a recording of a police interview admitted at trial insinuated the appellant was known to police – where defence counsel at trial chose not to seek a direction – where, in his evidence-in-chief, the appellant referred to a correctional centre as the place where he met a witness – where defence counsel at trial chose neither to apply to discharge the jury nor to seek a direction – whether the aforementioned events had an unfair prejudicial effect on the defence either individually or cumulatively– whether the appellant was deprived of a fair trial – whether there was a miscarriage of justice APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant’s case at trial relied on self-defence – where the defence was critically dependent upon the location of two knives within the passenger side door of the vehicle – where the main Crown witness provided statements to police that the appellant had a tendency of keeping his knife pouch in the passenger side door and that he was unaware of the location of the knife leading up to the offence – where defence counsel did not cross-examine the Crown witness in relation to these statements – where the Crown witness’ evidence at trial was inconclusive on the point – whether there was a reasonable explanation for the failure of defence counsel to cross-examine the Crown witness – whether the failure deprived the appellant of a significant possibility of acquittal Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, cited R v Fraser[2001] QCA 187, considered R v Genrich [2001] QCA 466, cited R v Glennon (1992) 173 CLR 592; [1992] HCA 16, cited R v…