R v CBM - [2015] QDC 109

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CBM [2015] QDC 109

PARTIES:

CBM
(Applicant)

V

The Queen
(Respondent)

FILE NO/S:

Indictment No. 424 of 2012

DIVISION:

Criminal

PROCEEDING:

Pre-Trial application

ORIGINATING COURT:

District court at Townsville

DELIVERED ON:

06 May, 2015

DELIVERED AT:

Townsville

HEARING DATES:

14 and 30 April 2015

JUDGE:

Durward SC DCJ

ORDERS:

1. I order a further pre-recording of the evidence of ALV subject to the parameters to which I have referred.

2. I order a further pre-recording of the evidence of SLC subject to the parameters to which I have referred.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PROCEDURE – WITNESSES – STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN – whether there are grounds for new or further pre-recordings of complainant child or children – whether the complainant child or children, if giving evidence in the ordinary way, could be recalled to give further evidence – whether the further pre-recordings of complainant child or children are in the interests of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – SEPARATE TRIALS – where applicant convicted or seven counts of sexual offending against two complainants after jury trial – where the appeal against convictions was allowed and retrial ordered – where ruling was made for separate trials for each complainant – where the focus of the defence case had changed because of the order for separate trials – whether there are grounds for new or further pre-recordings of complainant child or children – whether further pre-recordings of complainant child or children are warranted

LEGISLATION:

Evidence Act 1977 s21AN.

CASES:

R v Marshall [2010] QCA 43

COUNSEL:

AW Collins for the Applicant
J Robson for the Respondent

SOLICITORS:

Legal Aid Queensland for the Applicant
Office of the Director of Public Prosecutions for the Respondent

[1] The accused (“the applicant”) was committed on and charged with one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, under 12, and seven counts of rape. Five of the eleven counts were alleged to have been committed against a child ALV and six of the eleven counts were alleged to have been committed against a child SLC.

[2] The issues for determination on this pre-trial application are whether there are grounds for new or further pre-recordings of the two children (“the complainants”) in the context of separate trials. They are each Affected Witnesses.

Background

[3] On 20 December 2013, the applicant was convicted by a jury after a trial of seven of the eleven counts, two in respect of ALV and five in respect of SLC, and acquitted of four counts. On 29 August 2014, a retrial of the seven counts was ordered by the Court of Appeal.

[4] On 02 March 2015, his Honour Judge Baulch SC ordered separate trials in respect of ALV, on two counts, and SLC, on five counts. His Honour also excluded some medical evidence in respect of SLC, namely a finding on a medical examination of…

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 CBM

Details

AGLC: R v CBM [2015] QDC 109
Case: [2015] QDC 109
Decision Date: 06 May, 2015

CaseChat Overview and Summary

The case of R v CBM involved the respondent, who had previously been convicted of seven counts of sexual offences against two complainants, ALV and SLC, following a jury trial. The appeal against the convictions was successful, leading to a retrial order. The court also ruled for separate trials for each complainant, which shifted the focus of the defence case. The primary issue was whether there were grounds for new or further pre-recordings of the complainants' evidence, and whether further pre-recordings were warranted under the circumstances.

The court had to determine whether the further pre-recordings of the complainants' evidence would be in the interests of justice. The appeal court recognised the importance of the complainants' testimonies, particularly given the sensitive nature of the allegations and the impact of testifying in person. The court considered statutory provisions relating to evidence of children and weighed the need for procedural fairness against the potential distress to the complainants. The court found that the further pre-recordings were necessary to ensure the interests of justice were served, particularly in light of the changed defence focus due to the separate trials.

The court concluded that further pre-recordings of the complainants' evidence were warranted. It emphasised that the pre-recordings should adhere to specified parameters to mitigate any potential distress and to maintain the integrity of the proceedings. The court ordered further pre-recordings of the evidence of ALV and SLC, subject to the agreed parameters. This decision aimed to balance the need for thorough evidence collection with the protection of the complainants' welfare during the trial process.

The final orders of the court mandated a further pre-recording of the evidence of both ALV and SLC, with the condition that the recordings adhere to the parameters outlined in the judgment. This approach aimed to facilitate a fair trial while protecting the emotional well-being of the young complainants.

Orders

Orders of the court

1. I order a further pre-recording of the evidence of ALV subject to the parameters to which I have referred.

2. I order a further pre-recording of the evidence of SLC subject to the parameters to which I have referred.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 CBM* [2015] QDC 109
PARTIES:	CBM (Applicant) V The Queen (Respondent)
FILE NO/S:	Indictment No. 424 of 2012
DIVISION:	Criminal
PROCEEDING:	Pre-Trial application
ORIGINATING COURT:	District court at Townsville
DELIVERED ON:	06 May, 2015
DELIVERED AT:	Townsville
HEARING DATES:	14 and 30 April 2015
JUDGE:	Durward SC DCJ
ORDERS:	1. I order a further pre-recording of the evidence of ALV subject to the parameters to which I have referred. 2. I order a further pre-recording of the evidence of SLC subject to the parameters to which I have referred.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – PROCEDURE – WITNESSES – STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN – whether there are grounds for new or further pre-recordings of complainant child or children – whether the complainant child or children, if giving evidence in the ordinary way, could be recalled to give further evidence – whether the further pre-recordings of complainant child or children are in the interests of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – SEPARATE TRIALS – where applicant convicted or seven counts of sexual offending against two complainants after jury trial – where the appeal against convictions was allowed and retrial ordered – where ruling was made for separate trials for each complainant – where the focus of the defence case had changed because of the order for separate trials – whether there are grounds for new or further pre-recordings of complainant child or children – whether further pre-recordings of complainant child or children are warranted
LEGISLATION:	Evidence Act 1977 s21AN.
CASES:	R v Marshall [2010] QCA 43
COUNSEL:	AW Collins for the Applicant J Robson for the Respondent
SOLICITORS:	Legal Aid Queensland for the Applicant Office of the Director of Public Prosecutions for the Respondent