R v CBZ - [2018] QCA 16

SUPREME COURT OF QUEENSLAND

CITATION:

R v CBZ [2018] QCA 16

PARTIES:

R
v
CBZ
(appellant)

FILE NO/S:

CA No 258 of 2016
DC No 150 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Mackay – Date of Conviction: 31 August 2016 (McGill SC DCJ)

DELIVERED ON:

27 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2017

JUDGES:

Fraser, Philippides and McMurdo JJA

ORDERS:

1.   Application for leave to adduce fresh evidence granted.

2.   Appeal allowed.

3.   Conviction on count 1 set aside and sentence on that count quashed.

4.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where the appellant was convicted by a jury of one count of sexual assault – where a new witness claimed the complainant had deliberately sought the new witness to give perjured evidence – where the witness’s affidavit was apparently credible or capable of belief – whether there was a significant possibility the jury would have acquitted the appellant had the fresh evidence been before it at trial

Criminal Code (Qld), s 668E(1)

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, considered
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, applied
Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, cited
R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574, cited
R v Kleimeyer[2014] QCA 56, cited
R v Spina[2012] QCA 179, cited
R v VI[2013] QCA 218, considered
Van Beelen v The Queen (2017) 91 ALJR 1244; [2017] HCA 48, applied

COUNSEL:

S W McLennan for the appellant
J A Wooldridge for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: After a trial in the District Court the appellant was convicted of sexual assault (count 1). The jury found the appellant not guilty of rape (count 2) and assault with intent to rape the same complainant (count 3). The appellant abandoned the original ground of his appeal that the conviction on count 1 was unsafe and unsatisfactory. The appellant relied only upon the ground in the amended notice of appeal that there was a miscarriage of justice by reason of the fact that fresh evidence from a witness, Mr BR, was now available. The appellant applied for leave to adduce that evidence. For the following reasons that ground of appeal should be accepted, the conviction should be set aside, and there should be an order for a new trial.
Evidence about count 1
The appellant was married to the complainant’s daughter in 2004. They separated in 2013. There were two children of the marriage. The complainant’s daughter had two children from a previous relationship.
The complainant’s family owned a hairdressing business.…

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 CBZ

Details

AGLC: R v CBZ [2018] QCA 16
Case: [2018] QCA 16
Decision Date: 27 February 2018

CaseChat Overview and Summary

In the case of R v CBZ, the appellant contested his conviction for sexual assault, seeking to introduce new evidence that could potentially alter the outcome of his trial. The appellant was convicted by a jury on one count of sexual assault, but he appealed on the basis that fresh evidence was available that could have affected the trial's outcome. This fresh evidence came from a new witness, BR, who claimed that the complainant had solicited him to provide false testimony against the appellant. The key legal issues before the court were whether the evidence was truly fresh, meaning it was not available at the time of the trial despite reasonable diligence, and whether this evidence was material and cogent enough to warrant a new trial.

The court examined whether the proffered evidence met the criteria for being considered fresh, meaning it was not available at the time of the trial despite reasonable diligence. The court found that BR's affidavit was indeed fresh evidence as it was not available at the time of the trial and could not have been discovered through reasonable diligence. The court then assessed whether there was a significant possibility that the jury would have acquitted the appellant had this evidence been available. The court determined that the evidence was material and cogent, particularly in relation to the credibility of the complainant, which was a central issue in the trial. Given that the evidence suggested a potential manipulation by the complainant, the court concluded that it was likely the jury would have acquitted the appellant if this evidence had been presented.

The court granted the appellant's application to adduce fresh evidence, allowed the appeal, set aside the conviction on count 1, quashed the sentence on that count, and ordered a new trial. This decision underscores the importance of ensuring that all available evidence is presented to the jury to avoid potential miscarriages of justice.

Orders

Orders of the court

1. Application for leave to adduce fresh evidence granted.

2. Appeal allowed.

3. Conviction on count 1 set aside and sentence on that count quashed.

4. New trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant gave evidence in which he denied that he had engaged in any of the conduct the subject of the three charges. He gave evidence that the complainant had sexually harassed him and on occasion during a trip to Bundaberg he awoke to find the complainant on top of him with her breasts in his face.Additional evidence The appellant applied for leave to adduce evidence in the appeal in the form of an affidavit by BR. The affidavit included statements to the following effect. BR had known the complainant since about 2005 to 2006 when he started an apprenticeship as a hairdresser for her company. He knew the appellant in the same period because the appellant worked for the company in a managerial role. He was not a friend of the appellant’s and their working relationship was difficult at times. BR left the company some months after he completed his apprenticeship in about 2010. After BR heard in 2014 that the appellant had been charged with a number of criminal offences the complainant contacted him. The complainant told BR about the criminal charges. BR could recall only that the charges related to the appellant touching a child of the complainant (from a previous relationship). The complainant told BR that the appellant was trying to take the salons but he would not get anything. The complainant wanted to change the children’s surnames. The complainant wanted the appellant put in jail and asked BR if he would give a statement to the police. BR deposed that the complainant said to him, “When you write your statement, make sure you over-exaggerate it”. BR said he did not have time to write any statement. The complainant offered to write it for him and said that he could just sign it. The complainant told BR that he had witnessed various things, including: the appellant grabbing the complainant by the wrist and dragging her out of the salon; the appellant pushing the complainant’s daughter against a cupboard and slamming the door; the appellant slapping the complainant on the arse when they left the salon to get a coffee; BR saw bruising on the complainant’s daughter’s body and a scar on her head; and the scar was caused by the appellant throwing a chair at the complainant’s daughter. BR told the complainant that he had not witnessed those things. BR had not seen any of the incidents which the complainant raised with him. When he told her, “I don’t remember that”, the complainant would say, “Yes you do love, you were there”. The complainant was very insistent that he had seen things which he had not seen. She wanted BR to agree with her that those things had happened. He did not tell the complainant anything he thought would assist her. So that the conversation would finish he agreed to sign a statement that the complainant told him she would email to him. He did not intend to sign a false statement. About 20 minutes after the conversation BR sent a text message to the complainant with words to the effect that he did not want to be involved.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent argued that the evidence of BR should be categorised as “new” or “further” evidence rather than “fresh evidence”: R v Spina.[4] If the evidence was not fresh evidence it would be necessary for the appellant to bring itself within a residual discretion in exceptional cases to receive the additional evidence upon the footing that not to do so would lead to a miscarriage of justice.[5] The respondent acknowledged that on the face of BR’s affidavit his statement was not inherently lacking in credibility but was apparently credible or capable of belief.[6] The respondent argued, however, that the evidence was not such as to give rise to a concern that there had been a miscarriage of justice. The evidence was not in the form of a retraction or recantation by the complainant of her evidence at trial or in the form of an inconsistent statement. It does not directly refer to an allegation which was before the jury at the trial. It concerned only matters relating to the complainant’s credibility which had been raised in any event at the trial. The evidence did not impact upon the assessment of the veracity of BM’s evidence at trial as there was no evidence to justify an inference that the complainant had cajoled BM to give evidence unfavourable to the appellant. There was nothing to suggest that BM’s evidence was exaggerated. Accordingly, BR’s evidence that the complainant had asked him to exaggerate his evidence of events which the complainant stated he had witnessed would be unlikely to carry significant weight with a jury. The circumstance that BM had not referred to the incident charged in count 1 when providing a statement in 2004 was not significant because her evidence at trial was the statement she provided related to a different matter which was not a criminal proceeding. For those reasons, the respondent submitted, upon the footing that BR’s evidence was not fresh evidence, appellant intervention was not warranted, because, even accepting and acting upon the further evidence, a conclusion of guilty remained reasonably open so that no miscarriage of justice had been demonstrated.[7] The respondent submitted that if the Court concluded the evidence was fresh evidence the same result would follow, because, for the same reasons, the Court should not conclude that it was likely or that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial.[8][4][2012] QCA 179 [32]-[34].[5]R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574 at 579; R v Spina [2012] QCA 179 at [34].[6]Cf Gallagher v The Queen (1986) 160 CLR 392 at 404 - 407.[7]R v Kleimeyer [2014] QCA 56 at [61].[8]Mickelberg v The Queen (1989) 167 CLR 259 at 273 (Mason CJ), 301 (Toohey and Gaudron JJ), citing Gallagher v The Queen (1986) 160 CLR 392. See also Van Beelen v The Queen (2017) 91 ALJR 1244 at [22], [23], [32], [75].Consideration It is not suggested BR witnessed any act relevant to the charges against the appellant. There is also no suggestion that he was mentioned in any of the police statements. Nor is there a reasonable basis for thinking that the appellant should have known that there had been or was likely to have been a relevant communication between the complainant and BR. BR’s potential evidence came to light only because the former employee to whom he spoke happened to be married to a barrister who (so the court was informed by defence counsel) shared chambers with defence counsel. There was no particular reason why it should have occurred to the appellant that his legal representatives should interview BR. It would be setting the hurdle too high to find that the appellant’s legal representatives should have interviewed all of the appellant’s co-employees on the off chance that one of them might disclose something of assistance to the defence. BR’s affidavit should be regarded as “fresh evidence”, being evidence which could not with reasonable diligence have been discovered at the time of the trial.

CITATION:	R v CBZ [2018] QCA 16
PARTIES:	R v CBZ (appellant)
FILE NO/S:	CA No 258 of 2016 DC No 150 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Mackay – Date of Conviction: 31 August 2016 (McGill SC DCJ)
DELIVERED ON:	27 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2017
JUDGES:	Fraser, Philippides and McMurdo JJA
ORDERS:	1. Application for leave to adduce fresh evidence granted. 2. Appeal allowed. 3. Conviction on count 1 set aside and sentence on that count quashed. 4. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – MATERIALITY AND COGENCY – EVIDENCE DIRECTED TO CREDIT – where the appellant was convicted by a jury of one count of sexual assault – where a new witness claimed the complainant had deliberately sought the new witness to give perjured evidence – where the witness’s affidavit was apparently credible or capable of belief – whether there was a significant possibility the jury would have acquitted the appellant had the fresh evidence been before it at trial Criminal Code (Qld), s 668E(1) Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, considered Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, applied Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1, cited R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574, cited R v Kleimeyer[2014] QCA 56, cited R v Spina[2012] QCA 179, cited R v VI[2013] QCA 218, considered Van Beelen v The Queen (2017) 91 ALJR 1244; [2017] HCA 48, applied
COUNSEL:	S W McLennan for the appellant J A Wooldridge for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent