R v Mbilizi - [2020] QDCPR 53

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Mbilizi [2020] QDCPR 53

PARTIES:

THE QUEEN

(Respondent)

v

ESPOI MBILIZI

(Applicant/Defendant)

FILE NO/S:

59/20

DIVISION:

Criminal

PROCEEDING:

Section 590AA Pre-Trial Hearing

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

25 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

15 May 2020

JUDGE:

Fantin DCJ

ORDER:

APPLICATION DISMISSED.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTATION – where defendant charged on single indictment with one count of rape and one count of observation in breach of privacy – whether charges properly joined – whether evidence is cross admissible – whether charges should be tried separately

Legislation

Criminal Code Act 1899 (Qld) s 207A, 227A, s 348, s 349, s 590AA, s 567(2), s 597A(1)

Justice and Other Legislation Amendment Bill 2005 (Qld)

Cases

Andrews v R [1987] 1 Qd R 21

R v Bauer (a pseudonym) (2018) 92 ALJR 846

R v Cranston [1988] 1 Qd R 159

De Jesus v R (1986) 61 ALJR 1

HML v The Queen (2008) 235 CLR 334

Iongi v R (1993) 69 A Crim R 441

R v Little [2018] QCA 113

R v MAY [2007] QCA 333

R v McNiesh [2019] QCA 191

Pfennig v The Queen (1995) 182 CLR 461

R v PBB [2018] QCA 214

R v Phillips (2006) 225 CLR 303

COUNSEL:

M Dalton for the Applicant

N Friedewald for the Respondent

SOLICITORS:

Cuthbertson and Company Lawyers for the Applicant

Cairns Office of the Director of Public Prosecutions for the Respondent

Introduction

The defendant is charged on a single indictment with two counts of offending against the same complainant: one count of rape pursuant to s 349 of the Criminal CodeAct 1899 (Qld) (‘the Code’) and one count of observation in breach of privacy pursuant to s 227A(1) of the Code.

For count one, the charge is that on 16 February 2019 the defendant raped the complainant. The allegation is that late at night on 15 February 2019 the defendant went to the complainant’s house unannounced. She agreed to let him in. They had consensual sex before falling asleep. When they woke the next morning, the defendant wanted to have sex again. The complainant refused. The defendant then forced her to have penile/vaginal sex without her consent.

For count two, the charge is that on 23 March 2019 the defendant, without the complainant’s consent, observed the complainant, in circumstances where a reasonable adult would expect to be afforded privacy and the complainant was in a private place. The allegation is that late at night the defendant came to the complainant’s house uninvited and watched her through her bathroom window while she was changing. The defendant then came to her front door and asked to be let in. The complainant refused and called the police.

The defendant applies pursuant to section 590AA of the Code for an order that the indictment be quashed on the basis that the counts have been improperly joined pursuant to s 567(2). Alternatively,…

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 Mbilizi

Details

AGLC: R v Mbilizi [2020] QDCPR 53
Case: [2020] QDCPR 53
Decision Date: 25 May 2020

CaseChat Overview and Summary

The matter before the court involved a defendant, Mbilizi, who was charged with one count of rape and one count of observation in breach of privacy. The charges were brought on a single indictment, leading to a question about the propriety of joining the charges and the admissibility of evidence in relation to each offence. The court was tasked with determining whether the charges should be tried together or separately. The defendant argued that the charges should be tried separately due to potential prejudice arising from the joinder of offences and the admissibility of evidence in relation to each offence.

The primary legal issue was whether the charges of rape and observation in breach of privacy could be properly joined in a single indictment, considering the potential prejudice to the defendant and the admissibility of evidence under the relevant provisions of the law. The court had to consider whether the evidence relating to one offence would be prejudicial or confusing if presented alongside the other charge, and whether the charges were so connected that they ought to be tried together.

The court examined the principles surrounding the joinder of charges and the admissibility of evidence in related offences. It concluded that the charges were properly joined as they were connected in a series of events and the evidence of one offence would not be prejudicial to the defendant in relation to the other. The court found that the evidence of each offence was relevant and probative, and that trying the charges together would not result in injustice or prejudice to the defendant. Consequently, the application to try the charges separately was dismissed.

The court's decision was that the charges of rape and observation in breach of privacy would be tried together on the single indictment. The application by the defendant to try the charges separately was dismissed, and the matter proceeded to trial with both charges joined.

Orders

Orders of the court

APPLICATION 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 Mbilizi [2020] QDCPR 53
PARTIES:	THE QUEEN (Respondent) v ESPOI MBILIZI (Applicant/Defendant)
FILE NO/S:	59/20
DIVISION:	Criminal
PROCEEDING:	Section 590AA Pre-Trial Hearing
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	25 May 2020
DELIVERED AT:	Cairns
HEARING DATE:	15 May 2020
JUDGE:	Fantin DCJ
ORDER:	APPLICATION DISMISSED.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTATION – where defendant charged on single indictment with one count of rape and one count of observation in breach of privacy – whether charges properly joined – whether evidence is cross admissible – whether charges should be tried separately Legislation Criminal Code Act 1899 (Qld) s 207A, 227A, s 348, s 349, s 590AA, s 567(2), s 597A(1) Justice and Other Legislation Amendment Bill 2005 (Qld) Cases Andrews v R [1987] 1 Qd R 21 R v Bauer (a pseudonym) (2018) 92 ALJR 846 R v Cranston [1988] 1 Qd R 159 De Jesus v R (1986) 61 ALJR 1 HML v The Queen (2008) 235 CLR 334 Iongi v R (1993) 69 A Crim R 441 R v Little [2018] QCA 113 R v MAY [2007] QCA 333 R v McNiesh [2019] QCA 191 Pfennig v The Queen (1995) 182 CLR 461 R v PBB [2018] QCA 214 R v Phillips (2006) 225 CLR 303
COUNSEL:	M Dalton for the Applicant N Friedewald for the Respondent
SOLICITORS:	Cuthbertson and Company Lawyers for the Applicant Cairns Office of the Director of Public Prosecutions for the Respondent