R v Kubik - [1995] QCA 275

IN THE COURT OF APPEAL [1995] QCA 275

SUPREME COURT OF QUEENSLAND	C.A. No. 153 of 1995
Brisbane
[R. v. Kubik]

T H E Q U E E N

GEORGE FALCO KUBIK

Appellant

FITZGERALD P.
DAVIES J.A.

SHEPHERDSON J.

Judgment delivered 16/06/1995

REASONS FOR JUDGMENT - THE COURT

Appeal against conviction dismissed.

CATCHWORDS: AMENDMENT OF INDICTMENT - whether the trial judge erred in permitting the amendment to the indictment after the close of the prosecution and erred in refusing to adjourn the trial to another jury after permitting the amendment

DIRECTIONS TO THE JURY - whether sufficient

UNSAFE AND UNSATISFACTORY VERDICT

Counsel:	Ms J.M. Dick for the Appellant D. Bullock for the Respondent
Solicitors:	Boe & Hogan for the Appellant Queensland Director of Public Prosecutions for the Respondent

Date of Hearing:30/05/1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/06/1995

The appellant has appealed against his conviction in the

District Court at Brisbane on 6 April 1995 on one count of

extortion on 12 January 1994. The indictment, as originally

presented, charged the appellant in the following terms:
"That on the 12th day of January 1994 at Woodridge in the

State of Queensland you orally demanded from one Judith Main Thompson the performance of services namely immediate access to an infant child without reasonable or probable cause and containing threats that you would set fire to the office of the Department of Family Services if the said Judith Main Thompson did not comply with the said demand with intent thereby to gain the performance of services from the said Judith Main Thompson."

At the end of the prosecution case, counsel appearing for the

appellant at the trial raised a number of matters with the judge, one of which was that the indictment alleged that "the

accused orally demanded that Mrs Thompson perform access to an infant child". The trial judge, without deciding whether the indictment was capable of bearing that meaning, permitted the

prosecution to amend the indictment by (i) adding after the word

"namely" the words "providing the said George Falco Kubik", and (ii) in front of the word "infant" substituting the word "his"

for the word "an".

Counsel for the appellant at trial then sought a retrial before

another jury, which was refused.

On appeal, it was submitted for the appellant that the trial

judge erred in permitting the amendment to the indictment after

the close of the prosecution case and erred in refusing to adjourn the trial to another jury after permitting the amendment.

Neither point has any substance. Although the indictment might

have been better drafted, it specified all necessary elements of

the offence against sub-s. 415(b) of the Code charged against the appellant, and its meaning was quite unaffected by the

changes which were made.

The case against the appellant may be briefly stated.

On 12 January 1994, a baby, Joshua, born to the appellant and

his wife on 9 January 1994 at the Logan Hospital, was in the

custody of the Director-General of…

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 Kubik

Details

AGLC: R v Kubik [1995] QCA 275
Case: [1995] QCA 275
Decision Date: 16/06/1995

CaseChat Overview and Summary

The appeal in the matter of R v Kubik before the Court of Appeal of the Supreme Court of Queensland involved George Falco Kubik, who was convicted in the District Court at Brisbane on 6 April 1995 on one count of extortion. Kubik's conviction pertained to an incident that occurred on 12 January 1994, where he was accused of orally demanding from Judith Main Thompson, an employee of the Department of Family Services, immediate access to his infant child under threats of arson. The case centred on whether the trial judge had erred in permitting an amendment to the indictment after the close of the prosecution case and in refusing to adjourn the trial to another jury following the amendment. Additionally, Kubik argued that the trial judge's directions to the jury were insufficient and that the verdict was unsafe and unsatisfactory.

The legal issues the court had to decide included whether the trial judge correctly allowed the amendment to the indictment after the prosecution had concluded its case and whether the refusal to adjourn the trial to another jury was justified. Furthermore, the court had to examine if the trial judge's directions to the jury were adequate and if the verdict was indeed unsafe and unsatisfactory. The court also considered whether the appellant's intent to gain services through threats was sufficiently established.

The Court of Appeal found that the trial judge's decision to permit the amendment to the indictment, although potentially improvident, did not affect the meaning of the charge against Kubik. The amendment clarified that Kubik demanded access to his own child, which was already implicit in the context. The court also determined that there was no error in refusing to adjourn the trial to another jury. Regarding the directions to the jury, the court held that the trial judge did not misstate the defence's submissions and that his explanation of "threat" was appropriate and not prejudicial. Finally, the court concluded that the jury's verdict was safe and satisfactory, as the appellant's intent to gain services through threats was clearly established by the evidence.

In conclusion, the Court of Appeal dismissed the appeal against Kubik's conviction, finding no merit in the arguments presented. The final orders of the court upheld the conviction as originally rendered by the District Court.

Orders