Court of Appeal

R v Bricola [2017] QCA 051 (16/131) Gotterson and Morrison JJA and Bond J 31 March 2017

Full-text: QCA17-051.pdf

Catchwords

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted by a jury of murder – where the appellant contends a number of events during the trial had a cumulative prejudicial effect on the defence – where the Crown’s opening address erroneously implied the appellant had stabbed another person – where the implication was not corrected or explained immediately – where the trial judge admitted evidence, over objection, of the appellant referring to himself as a “gangster” – where the trial judge directed the jury to overcome the prejudice – where the appellant contends a recording of a police interview admitted at trial insinuated the appellant was known to police – where defence counsel at trial chose not to seek a direction – where, in his evidence-in-chief, the appellant referred to a correctional centre as the place where he met a witness – where defence counsel at trial chose neither to apply to discharge the jury nor to seek a direction – whether the aforementioned events had an unfair prejudicial effect on the defence either individually or cumulatively– whether the appellant was deprived of a fair trial – whether there was a miscarriage of justice

APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant’s case at trial relied on self-defence – where the defence was critically dependent upon the location of two knives within the passenger side door of the vehicle – where the main Crown witness provided statements to police that the appellant had a tendency of keeping his knife pouch in the passenger side door and that he was unaware of the location of the knife leading up to the offence – where defence counsel did not cross-examine the Crown witness in relation to these statements – where the Crown witness’ evidence at trial was inconclusive on the point – whether there was a reasonable explanation for the failure of defence counsel to cross-examine the Crown witness – whether the failure deprived the appellant of a significant possibility of acquittal