R v Broadby

Case [2023] QCA 127

SUPREME COURT OF QUEENSLAND

CITATION:

R v Broadby [2023] QCA 127

PARTIES:

R
v
BROADBY, Kyam Keith
(appellant)

FILE NO/S:

CA No 255 of 2022
SC No 88 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 4 November 2022 (Brown J)

DELIVERED ON:

16 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2023

JUDGES:

Mullins P and Morrison JA and North J

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 found not guilty of murder but convicted of manslaughter – where the deceased died due to a severe beating suffered at the hands of the appellant and another man after a confrontation between them – where, after the incident, the appellant returned to Melbourne, and then travelled to Tasmania with his then partner – where, during her relationship with the appellant, the appellant’s then partner had been pregnant to another man that had been violent towards her – where the evidence indicated that the appellant had not been violent towards her – where the appellant’s then partner indicated that she had contacted Victorian police when she put an intervention order in place – where the appellant contended that the mention of an intervention order was inadmissible and prejudicial, as it inferred that she had sought an intervention order against him – whether her mention of an intervention order constituted a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the jury was given a transcript which contained reference to an intervention order – where, at trial, a protocol was in place whereby counsel for both the prosecution and defence were involved in the process of editing the transcript which was to go to the jury – whether the inclusion of the reference to an intervention order in the transcript that went to the jury constituted a miscarriage of justice

COUNSEL:

C J Grant for the appellant
E L Kelso for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  I agree with Morrison JA.

  2. MORRISON JA:  The appellant was charged with murder arising out of the death of a man who was kicked, punched, and stomped on by the appellant and another man.  The appellant was convicted of manslaughter after a six-day trial.

  3. The appellant was sentenced to imprisonment for nine years, and the offence was declared to be a serious violent offence. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it was stated that the appellant had been held in pre-sentence custody for a period of 241 days, all of which was declared to be time served under the sentence.

  4. The appellant seeks to challenge the verdict on two…

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R v Broadby [2023] QCA 127
Case
[2023] QCA 127
Decision Date

CaseChat Overview and Summary

The appellant in this case, who was found not guilty of murder but convicted of manslaughter, contests the verdict on two grounds related to the admission and rejection of evidence. The deceased had died from injuries sustained during a confrontation with the appellant and another man. After the incident, the appellant returned to Melbourne and then travelled to Tasmania with his partner. During their relationship, the partner had been pregnant to another man who had been violent towards her, whereas there was no evidence that the appellant had been violent towards her. The appellant's partner had mentioned to the court that she had contacted Victorian police when she put an intervention order in place. The appellant argues that this mention of an intervention order was inadmissible and prejudicial, as it inferred that she had sought an intervention order against him. Additionally, the appellant contends that the jury was reminded of the inadmissible evidence because the transcript of proceedings was erroneously given to the jury without being appropriately redacted.

The court examined whether the mention of an intervention order constituted a miscarriage of justice and whether the inclusion of the reference to an intervention order in the transcript that went to the jury constituted a miscarriage of justice. The court found that the evidence was not prejudicial as there was no basis to consider that Ms Gallo was speaking of the appellant as the subject of the intervention order. The court also found that there was no perceptible risk that the jury would think the intervention order was applicable in any way to the appellant. Furthermore, the court found that the inclusion of the reference to an intervention order in the transcript that went to the jury did not constitute a miscarriage of justice.

The court dismissed the appeal, finding that the verdict was not unsafe or unsatisfactory, or unsupported by the evidence. The court concluded that the appellant's arguments did not amount to a miscarriage of justice and that the verdict should stand.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The appellant seeks to challenge the verdict on two related grounds:(a)Ground 1 – a miscarriage of justice was occasioned by the introduction of prejudicial evidence given by Ms Gallo in relation to an intervention order; and(b)Ground 2 – the jury was reminded of the inadmissible evidence because the transcript of proceedings was erroneously given to the jury without being appropriately redacted.The background facts The following summary has been taken from the appellant’s submissions and the learned trial judge’s sentencing remarks. As no ground is advanced that the verdict was unsafe or unsatisfactory, or unsupported by the evidence, there is no need to review the evidence beyond what appears below. An incident occurred at the Mareeba show grounds on 10 July 2019 resulting in the deceased being found badly beaten underneath a caravan annexe. Ambulance officers arrived and performed cardio-pulmonary resuscitation upon the deceased. The deceased’s airways were closed for a period of 13 minutes. Thereafter, the deceased was taken to the Mareeba Hospital. He was later flown to the Townsville University Hospital where he remained on life support in the intensive care unit. He died five days later on 15 July 2019. The appellant was employed with an amusement company that operated rides. He had travelled to Mareeba as a part of his employment for the Mareeba show. At that time, he was in a relationship with Ms Bell-Pickett, who worked for the same company. He had been friends with the deceased, and the two had worked together. On the evening of 10 July 2019, the appellant socialised with Ms Bell-Pickett and other show workers, including Ms Marshall, Mr Davis, and Ms Hume. All persons present were drinking alcohol, with the exception of Ms Bell-Pickett. At some point in the evening, the appellant, with Ms Bell-Pickett and Mr Davis, travelled to Cairns and attended a service station. Whilst the appellant and the others were in Cairns, the deceased remained at the Mareeba showgrounds. The deceased had been drinking, as had Ms Marshall, both to excess. Something occurred between them between them, and the deceased headbutted Ms Marshall. Ms Marshall phoned the police. Police attended at 11.06 pm and observed the deceased to be intoxicated, though it appeared he had calmed down. He was not arrested, nor was he taken to the police station. Later, the deceased had gone to the back of his truck. The appellant arrived back from Cairns with Ms Bell-Pickett and Mr Davis. Ms Marshall was there in a very upset state, and the appellant became aware of what had happened. The appellant, Mr Hume, and Mr Davis went to the deceased’s truck to see why he did it. A scuffle broke out between the deceased and Mr Hume, and Mr Hume punched the deceased.[1] The deceased was pulled out of, or fell out of, the truck. He had a hammer in his hand. He started swinging it around. There was yelling and swearing and some attempts to get him to put the hammer down.[1]That did not contribute to his death.

Evidence

Evidence Before The Court

The medical evidence determined the deceased died from cardio-respiratory arrest caused by significant injuries to his face and neck.The impugned evidence Ms Gallo was the former (short term) partner of the appellant. She was not present in Mareeba when the deceased was injured. Her evidence was admitted as evidence of post-offence conduct in the form of admissions made by the appellant. Ms Gallo’s evidence concerned what the appellant told her of the events on the night the deceased was attacked. She said the appellant confessed to having jumped on the deceased’s throat, and stomping and kicking him in the head multiple times. She also gave evidence that the appellant had told her that he hid underneath a caravan and later shaved his head to avoid detection by police. She said she knew the appellant because he was her ex-partner whom she met around May 2019.[2] She described her situation at that time:[3]“All right. At that particular time, did you have a partner?---I was coming out of an abusive relationship with my ex-partner.And what was his name?---[X].Okay. Now, when – or at the time that you’d met Mr Broadby, and after the relationship with [X], did you and Mr Broadby have a – or start a relationship, an intimate relationship?---Yes.”[2]AB 436 lines 14–17.[3]AB 436 lines 19–26. Ms Gallo said that, when she met the appellant, she was pregnant, and the father of the child was her ex-partner, X.[4][4]AB 438 lines 12–15. Ms Gallo explained that the appellant sought her assistance by way of money for a plane ticket, which she refused. Shortly after the appellant returned to Melbourne, Ms Gallo accompanied him across the Bass Strait. The pair caught the ferry, and stayed with his family in Tasmania.[5] She stopped seeing the appellant when she returned to Melbourne. Her evidence in cross-examination was that the breakup with the appellant was “messy”, and caused by herself and Ms Bell-Pickett discovering that the appellant was cheating on both of them.[6][5]AB 438.[6]AB 445 lines 1–15. Having given evidence about what the appellant told her as to the events on the night the deceased was attacked, she was cross-examined about the two times she gave a statement to police. Specifically, one account was given to Queensland police, and a second to Victorian police. Cross-examination concentrated on the account to the Victorian police.[7][7]AB 446 lines 8; AB 450 lines 3; AB 456 line 34; AB 458 Line 4. In re-examination, she was asked:[8]“Right. And then the Victorian Police were the next police to speak to you; is that right?---Yes.Did you ring the Victorian Police or did they just turn up, contacting you?---I can’t remember - - -All right?--- - - - but I do know that I did contact Vic Police when I did put an intervention order in place.”[8]AB 460 lines 19–26. It is this passage of evidence on which Grounds 1 and 2 depend.Consideration – ground 1 The appellant’s contention is that the passage of evidence quoted above, and in particular the reference to an “intervention order”, was neither relevant nor admissible as it had no bearing upon any facts in issue in the trial. Consequently, it was submitted that the evidence was inadmissible and prejudicial evidence about seeking an intervention order, inferentially against the appellant.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is this passage of evidence on which Grounds 1 and 2 depend.Consideration – ground 1 The appellant’s contention is that the passage of evidence quoted above, and in particular the reference to an “intervention order”, was neither relevant nor admissible as it had no bearing upon any facts in issue in the trial. Consequently, it was submitted that the evidence was inadmissible and prejudicial evidence about seeking an intervention order, inferentially against the appellant. There are a number of reasons why that submission cannot be accepted. First, there is no basis to consider that Ms Gallo was speaking of the appellant as the subject of the intervention order. Her relationship with the appellant was not described as being one of abuse of any kind, but rather described in neutral terms – albeit with a “messy” breakup.[9][9]AB 443 line 37–43; AB 445 lines 1–18. By contrast, her relationship with her ex-partner, [X], was explicitly described in terms of one where she was bearing his child, and where he had been abusive towards her.[10][10]AB 436 lines 19–22; AB 437 line 25; AB 438 lines 12–15. Secondly, the appellant’s own evidence was that his relationship with Ms Gallo was one of caring, whereas her experience with [X] was one where he was violent towards her, to the extent that the appellant had to rescue her.[11][11]AB 664 lines 23–36; AB 610 lines 11–15; AB 662 lines 47–49. Thirdly, given that state of the evidence, there was no perceptible risk that the jury would think the intervention order was applicable in any way to the appellant. The suggestion is risible and the inference impossible. Neither Ms Gallo nor the appellant gave any evidence that would suggest that. To the contrary, their evidence would have suggested that the intervention order was likely directed at [X]. The appellant’s submissions overstate the case when asserting that “[t]he impugned evidence had the very real likelihood of the jury impermissibly reasoning that the appellant was predisposed to violence because Ms Gallo sought an intervention order and as a result, the appellant was more likely to have assaulted the deceased with an intention to cause at least grievous bodily harm”.[12][12]Appellant’s outline paragraph [34]. Emphasis added. The vice can be seen in the highlighted passage. There is no basis for thinking the jury would have gone down that path of reasoning. Equally, the appellant submitted that the context of the evidence was concerned with the violence related by the appellant to Ms Gallo, and that is why the jury would have accepted it was a comment about the appellant’s capacity for violence. I do not agree. The question arose out of Ms Gallo’s uncertainty as to when the contact with the Victorian police occurred, and whether it was prompted by a phone call or not. In that context, the evidence had nothing to do with any violent account by the appellant. Fourthly, to the extent that the submission attempts to gain leverage from the fact that Ms Gallo dealt with Victorian police, that was something the jury already knew from the cross-examination.[13][13]AB 446; AB 450; AB 456; AB 458.