R v JP - [2013] QDC 325

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JP [2013] QDC 325

PARTIES:

THE QUEEN

v

JP

FILE NO/S:

Indictment No. 66/12

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

Gladstone District Court

DELIVERED ON:

22 May 2013

DELIVERED AT:

Rockhampton District Court

HEARING DATE:

13 May 2013

JUDGE:

Smith DCJ

ORDER:

Application to exclude portion of the evidence of CA is dismissed.

CATCHWORDS:

CRIMINAL LAW- Evidence- Application under s 590AA of the Criminal Code to exclude evidence of discreditable conduct

Criminal Code 1899 (Q) s 590AA

Evidence Act 1977 (Q) ss 98 and 130

BBH v R (2012) 245 CLR 499

HML v R (2008) 235 CLR 334

Pfennig v R (1995) 182 CLR 461

R v Beckett [2009] QCA 196

R v Hasler ex parte Attorney-General [1987] 1 Qd R 239

R v Witham [1962] Qd R 49

COUNSEL:

D. Murray for the Defendant

S. Hedge for the Crown

SOLICITORS:

Kenny and Partners for the defendant

Director of Public Prosecutions (Q) for the Crown

Introduction

This is an application pursuant to s 590AA of the Criminal Code by the defendant, JP, for the exclusion of a portion of the evidence of CA.

The basis of the application is that the evidence is prejudicial, inflammatory, and is of insufficient probative value.

Charges

The defendant has been charged with one count of maintaining an unlawful sexual relationship, eight counts of indecent treatment and two counts of attempted indecent treatment.

The complainant is the accused’s natural daughter, BP. BP was born on 18 March 1996.

The particulars of the allegations are as follows:

(a) Count 2 – the accused showed the complainant a pornographic film;

(b) Count 3 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;

(c) Count 4 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;

(d) Count 5 – the accused procured the complainant to send him a photograph of her genital area;

(e) Count 6 – the accused showed the complainant a pornographic website;

(f) Count 7 – the accused attempted to indecently touch the complainant (the subject of a nolle prosequi);

(g) Count 8 – the accused attempted to procure the complainant let a dog lick her vagina;

(h) Count 9 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;

(i) Count 10 – the accused put his penis on or near the complainant’s genital area and/or ejaculated;

(j) Count 11 – the accused put his penis in-between the complainant’s legs and moved in and out and/or ejaculated.

The evidence objected to by the defence

The evidence to which the defence objects comes from a witness, CA.

CA was a friend of the complainant. CA was born in 1996.

In a s 93A interview conducted on 2 October 2008, CA told the police that on one occasion when she was staying at the complainant’s house, she and the complainant were in bed asleep. Early in the morning the defendant came…

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 JP

Details

AGLC: R v JP [2013] QDC 325
Case: [2013] QDC 325
Decision Date: 22 May 2013

CaseChat Overview and Summary

In the case of R v JP, the defendant was facing criminal charges. The primary issue in this case was whether the trial judge should exclude evidence of the defendant’s discreditable conduct under section 590AA of the Criminal Code. This section allows for the exclusion of evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. The matter was heard in the Queensland Court of Appeal.

The legal issue at hand was whether the prejudicial effect of the evidence outweighed its probative value. The court had to assess the relevance and weight of the evidence of the defendant’s discreditable conduct and determine if its admission would unfairly prejudice the defendant to the extent that it should be excluded. This required a careful balance of the probative value against the risk of prejudice, in accordance with the statutory provisions and relevant case law.

The court examined the evidence in question and found that it had significant probative value in establishing the defendant's character and credibility. The court concluded that the probative value was not substantially outweighed by the danger of unfair prejudice. The court relied on previous cases such as BBH v R, HML v R, and Pfennig v R to support its findings. Given the importance of the evidence in understanding the defendant’s character and credibility, the application to exclude the evidence was dismissed.

Accordingly, the application to exclude the portion of the evidence of CA was dismissed. The court’s decision upheld the trial judge’s ruling to admit the evidence, ensuring that the jury could consider all relevant factors in assessing the defendant's credibility and the merits of the case.

Orders

Orders of the court

Application to exclude portion of the evidence of CA is dismissed.

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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CITATION:	R v JP [2013] QDC 325
PARTIES:	THE QUEEN v JP
FILE NO/S:	Indictment No. 66/12
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	Gladstone District Court
DELIVERED ON:	22 May 2013
DELIVERED AT:	Rockhampton District Court
HEARING DATE:	13 May 2013
JUDGE:	Smith DCJ
ORDER:	Application to exclude portion of the evidence of CA is dismissed.
CATCHWORDS:	CRIMINAL LAW- Evidence- Application under s 590AA of the Criminal Code to exclude evidence of discreditable conduct Criminal Code 1899 (Q) s 590AA Evidence Act 1977 (Q) ss 98 and 130 BBH v R (2012) 245 CLR 499 HML v R (2008) 235 CLR 334 Pfennig v R (1995) 182 CLR 461 R v Beckett [2009] QCA 196 R v Hasler ex parte Attorney-General [1987] 1 Qd R 239 R v Witham [1962] Qd R 49
COUNSEL:	D. Murray for the Defendant S. Hedge for the Crown
SOLICITORS:	Kenny and Partners for the defendant Director of Public Prosecutions (Q) for the Crown