R v CBU

Case [2017] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBU [2017] QCA 227

PARTIES:

R
v
CBU
(appellant/applicant)

FILE NO/S:

CA No 184 of 2017
DC No 30 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mackay – Date of Conviction: 10 August 2017; Date of Sentence: 11 August 2017 (McGill SC DCJ)

DELIVERED ON:

10 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2017

JUDGES:

Fraser and Morrison JJA and Bond J

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – where the appellant was convicted of two counts of common assault, a domestic violence offence – where admissions were tendered at the end of the trial – where admissions 19 and 14 were excluded by the trial judge – where the offences occurred in the context of a family relationship against the mother of four children – where the charges were brought at the time of concurrent family proceedings – where the children gave evidence against the appellant – where the defence case was that the assaults never occurred and that the children had been coached by the complainant to give evidence against the appellant – where the two admissions that were excluded related to two of children’s relationship and dealings with the appellant – where the appellant contends that the trial judge could not intervene to exclude the admissions even if technically inadmissible – where the appellant seeks to rely on the admissions as evidence of false complaints made by the children against the appellant and coaching of the children by the complainant and her mother – whether the admissions were admissible – whether the trial judge was correct to exclude the admissions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where there were inconsistencies between the complainant’s evidence of count 4 at trial and in prior statements and affidavits – where the complainant’s explanation was that she may have been describing other instances of domestic violence – where, in summing up, the trial judge acknowledged that there were two affidavits describing count 4 in different terms – where the jury was told not to speculate about the significance of the other affidavits in other court proceedings – where the appellant submitted that the summing up endorsed the complainant’s explanation for the inconsistencies – whether the learned trial judge’s directions went beyond what is permitted in summing up – whether the learned trial judge misdirected the jury to the extent of endorsing a particular inference available on the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to serve concurrent terms of six months’ imprisonment with a parole released date fixed after serving…

Continue reading R v CBU

Sign in free to access the full text

Details
AGLC
R v CBU [2017] QCA 227
Case
[2017] QCA 227
Decision Date

CaseChat Overview and Summary

The appellant, CBU, was convicted of two counts of common assault in domestic violence circumstances and appeals against his conviction and sentence. The appeal against conviction raises issues regarding the admissibility of certain statements and the trial judge’s summing up. The appeal against sentence contends that the sentence imposed was manifestly excessive and that the trial judge failed to properly consider the appellant’s demonstrated rehabilitation and mental health issues.

The court examined whether the trial judge was correct to exclude two statements, admissions 19 and 14, which related to the children’s relationship with the appellant. The appellant argued that the exclusion of these admissions was improper as they could have been used to show that the children were coached to give false evidence against him. The court found that the trial judge was within his discretion to exclude the admissions, even if technically inadmissible, as they did not pertain to the central facts of the case. Regarding the summing up, the court determined that the trial judge’s directions did not endorse a particular inference or misdirect the jury, and thus did not warrant a new trial.

The court also considered the grounds of appeal against sentence, which included the contention that the sentence was manifestly excessive and that the trial judge failed to consider the appellant’s rehabilitation and mental health at the time of sentencing. The court found that the sentence was not manifestly excessive, as the trial judge had appropriately considered the nature of the offences, the appellant’s personal circumstances, and the need for general deterrence. The court also found that there was no error in the trial judge’s approach to the sentence, and that the appellant’s arguments regarding rehabilitation and mental health did not establish that the sentence was manifestly excessive.

1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The grounds of the challenge to the sentence are that:(a)given the appellant’s demonstrated rehabilitation, the mitigating aspect of delay was not taken into account;(b)there was no moderation of the general deterrence factor on account of the appellant’s mental illness at the time of count 4; and(c)the sentences were manifestly excessive.Background to the trial The grounds of appeal do not include that the verdicts are unreasonable or cannot be supported by the evidence, nor that they are inconsistent. It is therefore not necessary to review all the evidence in order to consider the issues in the appeal. However some background to the trial and the way it was conducted is appropriate. M and her four children gave evidence of the assaults they said they had experienced or witnessed. A short synopsis of M’s evidence will suffice to reveal the character of the allegations. Count 1 concerned events in early 2006. The appellant got a rifle and pointed it at her head, saying he was going to kill her. He then turned the gun on himself, talking about suicide. No complaint about this event was made in any of M’s affidavits since that time and it was not corroborated by the children. The appellant was acquitted on this count. Counts 2 and 3 concerned events on one occasion in June 2008. The appellant grabbed her by the arm, and threw her repeatedly against a wall in the bedroom. He then took her into the ensuite bathroom by the throat, repeatedly and forcefully banging her head on a window. At the same time he was yelling and screaming at her. At that point he threw her on the bed and said he was going to have sex with her. She said “no” but he proceeded to rape her, and ejaculated on her stomach. M did not make any allegation of rape in any subsequent affidavits, and there were inconsistencies between what she said in court and what was in those affidavits. Further, one child, E, claimed to have witnessed the assault in the bathroom, but M denied he was there. The appellant was acquitted on both counts. Count 4 concerned events in August 2008, when she was in the kitchen cooking and there was an argument. The appellant took a knife, held it to her stomach and throat, and told her that he was going to “gut me like a pig and cut my throat”, and “I’ll cut your throat. I’ll gut you like a pig. Shut your fucking mouth”. All four children gave evidence of having witnessed this from the adjoining lounge room, though there were inconsistencies in the accounts. The appellant was convicted on this count. Count 5 concerned events on 6 June 2013, when M and the appellant argued over money which she had discovered hidden in a cavity in the bedroom. She asked the appellant where the money was, and he said he would show her. He then grabbed her by the arm and dragged her downstairs to the gun safe. He picked up a broom, first threatening her with it, then hitting her with it. She fell and he told her he was going to smash her head into a pulp. He picked her up by the arm, dragged her to the gun safe, and pushed her head into it, saying “Fucking look where the money is”. He punched her in the face. He then dragged her back upstairs and picked up a bar fridge, threatening to smash up the house and kill the police if she called them. He slapped her across the face then put a pillow over her face so she could not breathe easily. During that time he threatened to kill her and her parents.

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.