R v CBM

Case [2014] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBM [2014] QCA 212

PARTIES:

R
v
CBM
(appellant/applicant)

FILE NO/S:

CA No 16 of 2014
DC No 424 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

29 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2014

JUDGES:

Gotterson JA and North and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.        Appeal against convictions allowed.

2.        Convictions set aside.

3.        Re-trial ordered.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND COINCIDENCE – DIRECTIONS TO JURY – where sexual offences relating to two separate complainants were joined and tried upon the one indictment – where the trial judge did not direct the jury that they could use the evidence of offending against one complainant in support of proof of the charges relating to the other complainant or vice versa – where there was no direction telling the jury they could not use the evidence in that way – whether the trial judge should have directed the jury against propensity reasoning

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where sexual offences relating to two separate complainants were joined and tried upon the one indictment – where the trial judge omitted to direct the jury that it could not use similar fact evidence of offending against one complainant to reason towards a finding of guilt of offending against the other complainant – where the trial judge omitted to warn the jury of the dangers of propensity reasoning – whether the appellant suffered a miscarriage of justice by reason of the failure to so direct and warn

De Jesus v The Queen (1986) 61 ALJR 1 (1986) 68 ALR 1; [1986] HCA 65, considered
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, considered
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, applied
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, applied
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, applied
R v C [2013] QDC 191, cited
R v HAB[2006] QCA 80, applied
R v Kay[2006] QCA 302, cited
R v Pretorius [2010] 1 Qd R 67; [2009] QCA 58, distinguished
Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5, considered
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, considered

COUNSEL:

J Greggery for the appellant/applicant
M R Byrne QC, with J Robson, for the respondent

SOLICITORS:

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

  1. GOTTERSON JA:  I agree with the orders proposed by Henry J and with the reasons given by his Honour.

  1. NORTH J:  I have read the…

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Details
AGLC
R v CBM [2014] QCA 212
Case
[2014] QCA 212
Decision Date

CaseChat Overview and Summary

In the case of R v CBM, the appellant was convicted of multiple sexual offences against two separate complainants. The offences were joined and tried together on a single indictment. The primary issue before the court was whether the trial judge should have directed the jury against using evidence of the appellant’s offending against one complainant as proof of guilt in relation to the other complainant. The court was required to determine if this non-direction amounted to a miscarriage of justice.

The court considered whether the omission to direct the jury against propensity reasoning and to warn of the dangers associated with such reasoning constituted a significant error. It was noted that the trial judge did not explicitly direct the jury that they could not use the evidence in this manner, nor did the judge direct them that they could. The court examined the potential impact of this omission on the jury's deliberations and whether it could have influenced the verdict. The court concluded that the non-direction was a significant error, as it did not sufficiently guide the jury on how to properly assess the evidence, potentially leading to an unfair bias against the appellant.

Based on the analysis, the court found that the appellant's rights to a fair trial were compromised by the trial judge’s failure to appropriately direct the jury on the use of similar fact evidence. This misdirection was deemed to have caused a miscarriage of justice. Consequently, the appeal was allowed, the convictions set aside, and a re-trial ordered to ensure the appellant received a fair trial free from the influence of improper evidence usage.

Orders

Orders of the court

1. Appeal against convictions allowed.

2. Convictions set aside.

3. Re-trial ordered.

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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