R v McBride

Case [2008] QCA 412

SUPREME COURT OF QUEENSLAND

CITATION:

R v McBride [2008] QCA 412

PARTIES:

R
v
McBRIDE, John Grant
(appellant)

FILE NO/S:

CA No 307 of 2007
DC No 587 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2008

JUDGES:

de Jersey CJ, Holmes JA and White AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Convictions set aside and a new trial ordered on all four counts

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW –  IMPROPER ADMISSION OR REJECTION OF EVIDENCE – PARTICULAR CASES – where appellant convicted after trial on one count of assault occasioning bodily harm, one count of indecent assault, and two counts of rape – where complainant, the former de facto wife of the appellant, secretly recorded conversations which were tendered at trial as evidence – where experienced defence counsel considered the evidence and did not object to its admission – where appellant counsel argued, on appeal, that evidence was prejudicial – whether primary judge should have rejected the evidence, notwithstanding the lack of objection by the appellant’s counsel

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where, in directing the jury in relation to the elements of unlawful and indecent assault, primary judge cited the dictionary definition of ‘indecent’, being ‘unbecoming or offensive to common propriety’ – whether jury’s finding of guilt on indecent assault charge affected by this direction – where appellant objected on appeal to documents given to jury by primary judge, which contained a ‘snapshot picture’ of the Crown’s allegations, which contained brief particulars –whether these documents were unfair to the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where primary judge directed jury that its task was to consider whether it preferred the evidence of the complainant or the appellant, without mentioning that if the jury preferred neither, it should acquit – whether a miscarriage of justice occurred – whether a re-trial should be ordered 

Criminal Code 1899 (Qld), s 227, s 352

Crampton v The Queen (2000) 206 CLR 161; (2000) 176 ALR 369; [2000] HCA 60, cited
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited
Gately v The Queen (2007) 232 CLR 208 [2007] HCA 55, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, distinguished
R v Armstrong [2006] QCA 158, cited
R v Booth [2005] QCA 30, considered
R v Bryant [1984] 2 Qd R 545, applied
R v E (1995) 89 A Crim R 325, considered
R v George [1980] Qd R…

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AGLC
R v McBride [2008] QCA 412
Case
[2008] QCA 412
Decision Date

CaseChat Overview and Summary

The appellant, McBride, was convicted on one count of assault occasioning bodily harm, one count of indecent assault, and two counts of rape. The conviction was based on evidence that included secretly recorded conversations between McBride and the complainant, his former de facto wife. The appellant's counsel did not object to the admission of this evidence during the trial. However, on appeal, the appellant argued that the admission of this evidence was prejudicial and that the primary judge should have rejected it, even though no objection was raised during the trial. Additionally, the appellant challenged the primary judge's direction to the jury on the elements of unlawful and indecent assault, particularly the use of the dictionary definition of 'indecent'. The appellant also objected to the documents given to the jury, which he claimed were unfair and contained brief particulars of the Crown's allegations.

The court examined whether the primary judge should have rejected the secretly recorded conversations, despite the lack of objection from the appellant's counsel. The court determined that the prejudice caused by the admission of the conversations was significant enough to warrant a new trial. Furthermore, the court found that the primary judge's direction to the jury regarding the definition of 'indecent' was misleading, potentially affecting the jury's finding of guilt on the indecent assault charge. The court also considered the documents given to the jury and concluded that they were unfair to the appellant, as they did not provide a comprehensive picture of the Crown's allegations.

The court held that the admission of the prejudicial evidence, the misleading direction on the definition of 'indecent', and the unfair documents given to the jury all contributed to a miscarriage of justice. Consequently, the court set aside the convictions and ordered a new trial on all four counts. The appellant's appeal was thus successful, and the convictions were quashed, paving the way for a re-evaluation of the evidence in a new trial.

Orders

Orders of the court

Convictions set aside and a new trial ordered on all four counts

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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