R v Sielaff - [2023] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sielaff [2023] QCA 115

PARTIES:

R
v
SIELAFF, Shaun Dudley
(appellant)

FILE NO/S:

CA No 224 of 2022
DC No 232 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 19 September 2022 (Lynham DCJ)

DELIVERED ON:

2 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2023

JUDGES:

Bowskill CJ and Mullins P and Morrison JA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by jury, along with one co-accused, of one count of burglary in the night, while armed, in company, one count of attempted armed robbery, in company, with personal violence, and one count of threatening violence, at night – where the prosecutor had applied for leave pursuant to s 15 of the Evidence Act 1977 (Qld) to cross-examine the appellant in relation to his criminal history – where that application was refused, in the exercise of the trial judge’s discretion – where the prosecutor flagged her intention to cross-examine the appellant as to his relationship with bikies, as a result of things he had said in his evidence in chief, with no objection being raised by defence counsel or the trial judge – where the appellant, while being cross-examined about his relationship with bikies, used the phrases “protection in the boneyard” and “protection prisoner” – where defence counsel did not object, when asked by the trial judge, if there was any objection to the appellant being asked by the prosecutor what he meant by the phrase “protection in the boneyard” – where the appellant submits, on the appeal, that the appellant’s evidence during his cross-examination led to the inference that the appellant was, at one time, a “prisoner” – whether the prosecutor wrongly questioned the appellant, tending to show that he had been convicted of offences, in circumvention of the trial judge’s ruling refusing the application under s 15 of the Evidence Act – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where, with the agreement of counsel, the trial judge proposed to (and did) give the jury a propensity direction in respect of the appellant’s involvement with bikies – where the trial judge also raised with defence counsel whether any direction was sought as a result of the reference in the appellant’s evidence to the phrase “protection prisoner” – where defence counsel indicated it would be preferable if everyone left it alone – where the trial judge acceded to defence counsel’s request and no additional direction was given – whether there was a miscarriage of justice as a result

Evidence Act 1977 (Qld), s 15(2)(c)

R v Bricola[2017] QCA 51, considered
R v Hally [1962] Qd R 214, considered
R v Knape

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 Sielaff

Details

AGLC: R v Sielaff [2023] QCA 115
Case: [2023] QCA 115
Decision Date: 2 June 2023

CaseChat Overview and Summary

In the case of R v Sielaff, the appellant was convicted by a jury, along with one co-accused, of multiple offences including burglary in the night, while armed, in company, attempted armed robbery, in company, with personal violence, and threatening violence, at night. The primary issues on appeal concerned the trial judge's refusal to allow the prosecution to cross-examine the appellant about his criminal history, as well as the trial judge's decision to provide a propensity direction to the jury regarding the appellant's involvement with bikies. The appellant argued that these decisions amounted to a miscarriage of justice.

The court considered whether the trial judge's refusal to allow the prosecutor to cross-examine the appellant about his criminal history, and the subsequent cross-examination about the appellant's relationship with bikies, amounted to a miscarriage of justice. The court noted that while the trial judge had ruled that the prosecutor could not cross-examine the appellant about his criminal history, the prosecutor was permitted to ask about the appellant's relationship with bikies, based on his own evidence in chief. The court found that the prosecutor did not improperly question the appellant, nor did the trial judge's actions constitute a miscarriage of justice. Additionally, the court examined the trial judge's decision to give a propensity direction regarding the appellant's involvement with bikies and found that the judge's decision not to give an additional direction regarding the phrase "protection prisoner" was within the trial judge's discretion and did not amount to a miscarriage of justice.

The court dismissed the appeal, finding that there was no miscarriage of justice in the trial judge's decisions. The appeal was dismissed, and the convictions were upheld.

ORDERS:
Appeal dismissed.

Orders

Orders of the court

Appeal 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Sielaff [2023] QCA 115
PARTIES:	R v SIELAFF, Shaun Dudley (appellant)
FILE NO/S:	CA No 224 of 2022 DC No 232 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Townsville – Date of Conviction: 19 September 2022 (Lynham DCJ)
DELIVERED ON:	2 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2023
JUDGES:	Bowskill CJ and Mullins P and Morrison JA
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by jury, along with one co-accused, of one count of burglary in the night, while armed, in company, one count of attempted armed robbery, in company, with personal violence, and one count of threatening violence, at night – where the prosecutor had applied for leave pursuant to s 15 of the Evidence Act 1977 (Qld) to cross-examine the appellant in relation to his criminal history – where that application was refused, in the exercise of the trial judge’s discretion – where the prosecutor flagged her intention to cross-examine the appellant as to his relationship with bikies, as a result of things he had said in his evidence in chief, with no objection being raised by defence counsel or the trial judge – where the appellant, while being cross-examined about his relationship with bikies, used the phrases “protection in the boneyard” and “protection prisoner” – where defence counsel did not object, when asked by the trial judge, if there was any objection to the appellant being asked by the prosecutor what he meant by the phrase “protection in the boneyard” – where the appellant submits, on the appeal, that the appellant’s evidence during his cross-examination led to the inference that the appellant was, at one time, a “prisoner” – whether the prosecutor wrongly questioned the appellant, tending to show that he had been convicted of offences, in circumvention of the trial judge’s ruling refusing the application under s 15 of the Evidence Act – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where, with the agreement of counsel, the trial judge proposed to (and did) give the jury a propensity direction in respect of the appellant’s involvement with bikies – where the trial judge also raised with defence counsel whether any direction was sought as a result of the reference in the appellant’s evidence to the phrase “protection prisoner” – where defence counsel indicated it would be preferable if everyone left it alone – where the trial judge acceded to defence counsel’s request and no additional direction was given – whether there was a miscarriage of justice as a result Evidence Act 1977 (Qld), s 15(2)(c) R v Bricola[2017] QCA 51, considered R v Hally [1962] Qd R 214, considered R v Knape