R v Baker
[2006] QCA 472
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Baker[2006] QCA 472
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R v Baker[2006] QCA 472
R v Baker[2006] QCA 472
SUPREME COURT OF QUEENSLAND
CITATION: | R v Baker [2006] QCA 472 |
PARTIES: | R v BAKER, Kenneth Pancho (applicant) |
FILE NO/S: | CA No 218 of 2006 DC No 1573 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | Reference under s 668B Criminal Code |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED EXTEMPORE ON: | 20 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 November 2006 |
JUDGES: | de Jersey CJ, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | The application filed on 4 August 2006 is refused |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – QUEENSLAND – CASE STATED AND REFERENCE OF QUESTION OF LAW – whether the applicant can revisit a ruling made in a previous pre-trial hearing at an interlocutory stage - whether the “court of trial” has reserved any question of law for the consideration of this Court Criminal Code 1899 (Qld), s 590AA, s 668B Evidence Act 1977 (Qld), s 93B |
COUNSEL: | The applicant appeared on his own behalf B G Campbell for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
THE CHIEF JUSTICE: I will give judgment now. On 4 August 2006, the applicant filed an application described on its face as "an application for evidence allowed within case of deceased witness". The order sought is expressed in this way:
"Under section 668B as it would be highly prejudicial to proceed to trial as I would not be given a fair and just trial in cross-examining the deceased."
There is currently in the District Court an indictment charging the appellant with the commission on 2 July 2002 of a number of offences: assault occasioning bodily harm; burglary in the night with violence; assault; serious assault, and wilful damage. In two cases the complainant was a Mr Battershell. Battershell died on 4 October 2004. The matter has not yet proceeded to trial.
A pretrial application under section 590AA of the Criminal Code was heard in the District Court on 12 April 2006. The Crown sought a direction that it might lead evidence of statements by Mr Battershell under section 93B of the Evidence Act 1997. The application was opposed. Her Honour Judge Dick ruled the statements admissible. The application now before the Court appears to be an attempt to revisit the issue on which her Honour ruled. That is not possible because of section 590AA subsection 4 which provides:
"A direction or ruling must not be subject to interlocutory appeal, but may be raised as a ground of appeal against conviction or sentence."
Section 668A provides that the Attorney-General may refer a point of law arising in relation to a pretrial ruling under section 590AA to the Court of Appeal. That right has not been exercised here. Accordingly, section 590AA subsection 4 excludes this apparent attempt to revisit the correctness of the pretrial ruling. The application itself refers to section 668B. Subsection 1 of that section provides:
"When any person is indicted for any indictable offence, the court of trial must, on the application of counsel for the accused person before verdict and may in its discretion either before or after judgment without such application, reserve any question of law which arises on the trial for the consideration of the court."
Subsection 2 contemplates the transmission of such a question, if properly reserved, to the Court of Appeal following conviction. This is not a case where the "court of trial" has reserved any question of law for the consideration of this Court. No trial has commenced. It is not a case where any application by counsel for the accused has been made to a court of trial and the mechanism set up by section 668B is presently unavailable.
Mr Baker has appeared himself by telephone for the purposes of this morning's hearing. At the outset, he raised the question of a possible adjournment of the application because of his other commitments in Cairns. The application for judgment should, however, be refused because the primary application is itself plainly incompetent. The application filed on 4 August 2006 must be refused.
JERRARD JA: I agree.
HOLMES JA: I agree.
THE CHIEF JUSTICE: The application is refused. Thank you,
Mr Baker.