R v Bugler - [2014] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bugler [2014] QCA 143

PARTIES:

R
v
BUGLER, Gregory Ernest
(appellant)

FILE NO/S:

CA No 282 of 2013
DC No 249 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

17 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2014

JUDGES:

Holmes JA and Philippides and Dalton JJ
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 at trial of attempted rape of a male child complainant – where the complainant was questioned by the judge in accordance with s 9B(2) of the Evidence Act 1977 before giving pre-recorded evidence on oath – where the complainant was cross-examined two months later at a second pre-recording proceeding – where the judge did not undertake a further s 9B(2) inquiry at the second pre-recording proceeding – whether the judge ought to have repeated the s 9B(2) inquiry at the second pre-recording proceeding

Evidence Act 1977 (Qld), s 9, s 9A, s 9B

R v BBR [2010] 1 Qd R 546; [2009] QCA 178, cited
R v Chalmers [2013] 2 Qd R 175; [2011] QCA 134, cited
R v WAU[2013] QCA 265, cited

COUNSEL:

B Mumford for the appellant
V A Loury for the respondent

SOLICITORS:

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

HOLMES JA: I agree with the reasons of Philippides J and the order she proposes.

PHILIPPIDES J:

The issue

The appellant appeals against his conviction, after trial, of attempted rape of the male child complainant. The sole ground of appeal is that s 9B(2) of the Evidence Act 1977 (the Act) was not complied with in relation to the child complainant’s competency to give sworn evidence in a pre-recording proceeding held on 8 October 2013. It was contended that the learned trial judge was required by s 9B(2) of the Act to form an opinion on that occasion as to the matters set out therein, notwithstanding that the judge had previously done so on 14 August 2013 at an earlier pre-recording proceeding of the complainant’s evidence. The issue raised on the appeal was thus whether, in circumstances where inquiry had previously been made by the judge as to the competence of the child complainant to give sworn evidence, that inquiry ought to have been repeated on 8 October 2013.

Background

The conduct for which the appellant was convicted was alleged to have occurred on a date unknown between 23 November 2012 and 26 November 2012, when the complainant was six years old. As at November 2012, the complainant was primarily cared for by his father. Every second weekend the complainant stayed with his mother, with whom the appellant…

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 Bugler

Details

AGLC: R v Bugler [2014] QCA 143
Case: [2014] QCA 143
Decision Date: 17 June 2014

CaseChat Overview and Summary

The case of R v Bugler involved an appeal by the appellant against a conviction of attempted rape of a male child complainant. The dispute reached the court on the grounds that the judge did not conduct a further inquiry under section 9B(2) of the Evidence Act 1977 during the second pre-recording proceeding, after the child had previously been questioned by the judge in accordance with the same provision. The appellant argued that this omission amounted to a miscarriage of justice.

The legal issues before the court were whether the particular circumstances of the case constituted a miscarriage of justice and whether the failure to conduct a further s 9B(2) inquiry at the second pre-recording proceeding was an error that warranted a new trial. The court had to consider whether the absence of the inquiry at the second proceeding was significant enough to affect the fairness of the trial or the reliability of the evidence.

The court examined the context and procedural history of the case, noting that the complainant was adequately questioned by the judge under s 9B(2) before the first pre-recording. The court found that the second pre-recording, which occurred two months later, involved the same complainant and dealt with the same evidence. The court held that the judge’s failure to repeat the s 9B(2) inquiry did not constitute a miscarriage of justice. The court reasoned that the circumstances did not reach a level of significance that would require a new trial, as the inquiry was not a prerequisite for the admissibility of the evidence in this context. The court concluded that the error did not undermine the fairness or reliability of the proceedings.

The appeal was dismissed, and the conviction was upheld. The court did not see the need for a new trial based on the grounds presented.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Bugler [2014] QCA 143
PARTIES:	R v BUGLER, Gregory Ernest (appellant)
FILE NO/S:	CA No 282 of 2013 DC No 249 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Ipswich
DELIVERED ON:	17 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2014
JUDGES:	Holmes JA and Philippides and Dalton JJ 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 at trial of attempted rape of a male child complainant – where the complainant was questioned by the judge in accordance with s 9B(2) of the Evidence Act 1977 before giving pre-recorded evidence on oath – where the complainant was cross-examined two months later at a second pre-recording proceeding – where the judge did not undertake a further s 9B(2) inquiry at the second pre-recording proceeding – whether the judge ought to have repeated the s 9B(2) inquiry at the second pre-recording proceeding Evidence Act 1977 (Qld), s 9, s 9A, s 9B R v BBR [2010] 1 Qd R 546; [2009] QCA 178, cited R v Chalmers [2013] 2 Qd R 175; [2011] QCA 134, cited R v WAU[2013] QCA 265, cited
COUNSEL:	B Mumford for the appellant V A Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent