R v Gibb - [2007] QCA 191

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gibb [2007] QCA 191

PARTIES:

R
v
GIBB, Robert Balfour

(appellant/applicant)

FILE NO/S:

CA No 151 of 2006

DC No 289 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

8 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2007

JUDGES:

Holmes JA, Fryberg and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentences dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – whether prosecutor should have called a witness at trial – where counsel for the appellant argued that the witness’ evidence was pertinent to a number of issues – where defence counsel did not ask the prosecutor to call the eyewitness at trial – where it was open to defence counsel to call the witness – whether the prosecutor’s failure to call the witness occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where trial judge did not direct the prosecutor to call an eyewitness – whether trial judge erred in failing to make this direction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where prosecution marked certain photographs for identification but did not tender them as exhibits – where trial judge ruled the photographs played no part in the Crown case and refused defence counsel’s request for the photographs to be tendered – whether trial judge erred in ruling that photographs should not be tendered as exhibits

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to nine months’ imprisonment wholly suspended – where offending conduct involved the use of a dangerous weapon or instrument – where applicant is a man of mature age with a relevant previous history – whether sentence imposed was within range

Dispute Resolution Centres Act 1990 (Qld)

R v Walsh, Sayer and Thompson; ex parte A-G [1998] QCA 217, CA No 158 of 1998, CA No 159 of 1998, CA No 160 of 1998, 28 July 1998, cited
R v Cherrie [2006] QCA 491, CA No 256 of 2006, 24 November 2006, cited
R v Shepherd [2006] QCA 233, CA No 67 of 2006, 21 June 2006, cited

R v Neivandt [2000] QCA 224, CA No 414 of 1999, 9 June 2000, cited

COUNSEL:

L Alford for the…

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 Gibb

Details

AGLC: R v Gibb [2007] QCA 191
Case: [2007] QCA 191
Decision Date: 8 June 2007

CaseChat Overview and Summary

In the case of R v Gibb, the appellant, Gibb, was convicted of various charges, including the use of a dangerous weapon, and sentenced to nine months’ imprisonment, wholly suspended. Gibb appealed against his conviction and sentence, arguing that the prosecutor should have called a particular witness at trial, and that the trial judge erred in not directing the prosecutor to call the witness, and in not allowing certain photographs to be tendered as exhibits. The appeal against the conviction and sentence was heard in the High Court of Australia. The legal issues before the court were whether the prosecutor’s failure to call a particular witness at trial, despite the appellant’s counsel arguing that the witness’ evidence was pertinent, resulted in a miscarriage of justice. Additionally, the court considered whether the trial judge erred in not directing the prosecutor to call the witness, and in not allowing certain photographs to be tendered as exhibits.

The court held that the prosecutor’s failure to call the witness did not occasion a miscarriage of justice, as it was open to the defence counsel to call the witness. The court further found that the trial judge did not err in not directing the prosecutor to call the witness, as it was not the trial judge’s role to direct the prosecutor on whom to call as a witness. Finally, the court held that the trial judge did not err in ruling that certain photographs should not be tendered as exhibits, as the judge was correct in finding that the photographs played no part in the Crown case. The court also found that the sentence imposed was within the appropriate range, considering the nature of the offending conduct, the use of a dangerous weapon, and the appellant’s relevant previous history.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentences dismissed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gibb [2007] QCA 191
PARTIES:	R v GIBB, Robert Balfour (appellant/applicant)
FILE NO/S:	CA No 151 of 2006 DC No 289 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	8 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2007
JUDGES:	Holmes JA, Fryberg and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentences dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – whether prosecutor should have called a witness at trial – where counsel for the appellant argued that the witness’ evidence was pertinent to a number of issues – where defence counsel did not ask the prosecutor to call the eyewitness at trial – where it was open to defence counsel to call the witness – whether the prosecutor’s failure to call the witness occasioned a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where trial judge did not direct the prosecutor to call an eyewitness – whether trial judge erred in failing to make this direction CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where prosecution marked certain photographs for identification but did not tender them as exhibits – where trial judge ruled the photographs played no part in the Crown case and refused defence counsel’s request for the photographs to be tendered – whether trial judge erred in ruling that photographs should not be tendered as exhibits CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant sentenced to nine months’ imprisonment wholly suspended – where offending conduct involved the use of a dangerous weapon or instrument – where applicant is a man of mature age with a relevant previous history – whether sentence imposed was within range Dispute Resolution Centres Act 1990 (Qld) R v Walsh, Sayer and Thompson; ex parte A-G [1998] QCA 217, CA No 158 of 1998, CA No 159 of 1998, CA No 160 of 1998, 28 July 1998, cited R v Cherrie [2006] QCA 491, CA No 256 of 2006, 24 November 2006, cited R v Shepherd [2006] QCA 233, CA No 67 of 2006, 21 June 2006, cited R v Neivandt [2000] QCA 224, CA No 414 of 1999, 9 June 2000, cited
COUNSEL:	L Alford for the…