Court of Appeal (Qld)|2002-08-03|Before: de Jersey CJ, McPherson and Williams JJASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
de Jersey CJ, McPherson and Williams JJASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES –
CULTIVATION - TRAFFICKING – OTHER MATTERS – whether
the learned
trial judge erred in accepting the indictment which alleged trafficking in
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES –CULTIVATION - TRAFFICKING – OTHER MATTERS – whetherthe learnedtrial judge erred in accepting the indictment which alleged trafficking invarious drugs listed in both Schedule 1 andSchedule 2 of the Drugs MisuseAct 1986 – whether the learned trial judge erred when addressing thejury when taking their verdict that it was sufficient toprove trafficking inany one of the drugs referred to in the charge.CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – JUDGMENTAND PUNISHMENT – SENTENCE – FACTORS TO BE TAKENINTO ACCOUNT –CHARACTER OF OFFENCE – DRUG OFFENCES - where charges relate to bothSchedule 1 and Schedule 2 drugs -whether need for a special verdict –Sentencing judge may rely on section 132C of the Evidence Act in order todetermine which drugs were involved in the trafficking – where a“circumstance of aggravation” hadto be charged in the indictment
and specifically proven.
CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – COURSE OF
EVIDENCE, STATEMENTS AND ADDRESSES – FINAL ADDRESS
OF COUNSEL FOR CROWN -
GENERALLY – whether a Crown Prosecutor may not in his final address to the
jury deal with issues of
credit including whether witnesses had possible motives
to lie.
CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – SUMMING UP
– whether learned trial judge erred in directing
jury regarding the
accused’s failure to call evidence when in fact witnesses were
non-compellable – whether such a direction
caused a miscarriage of
justice
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES –
PENALTIES – PRODUCING OR CULTIVATING – where circumstance
of
aggravation required evidence of the actual quantity of the drug to exceed the
prescribed amount.
CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT
AND PUNISHMENT – SENTENCE – FACTORS TO BE
TAKEN INTO ACCOUNT –
FACTUAL BASIS FOR SENTENCE – PARTICULAR CASES – consideration of
R v Walton CA No 257 of 1989, R v Corrigan [2001] QCA 251, R v
Everett [1999] QCA 14 as comparable sentences. The appellant was sentenced
to imprisonment for a period of 10 years for trafficking in a dangerous drug
and
for a period of 8 years for the production of a dangerous drug with the
sentences to be served concurrently.
Criminal Code (Qld)Drugs Misuse Act 1986
(Qld)Evidence Act 1977 (Qld)R v
Griffin CA No 171 of 1984, consideredJones v Dunkel [1959] HCA 8
(1959) 101
CLR 298, distinguishedPalmer v The Queen (1998)193 CLR 1,
distinguishedR v Antipas [1999] QCA 168
CA No 17 of 1999, 14 May
1999 R v Boyd [2001] QCA 421
CA No 134, 3 October 2001,
followedR v Brennan [1998]] QCA 163
CA No 99 of 1998, 26 June 1998,
followedR v Buckland [1977] 2 NSWLR 452, followedR v
Corrigan [2001] QCA 251
CA No 272 of 2000, 29 June 2001, consideredR
v Everett [1999] QCA 14
CA No 311 of 1998, 5 February 1999,
consideredR v Festa [2001] 76 ALJR 291, consideredR v Jacobs
[1998] 1 QdR 96, followedR v Morrison [1998] QCA 162
[1999] 1 QdR 397,
consideredR v P.L.K [1999] VSCA 194
[1999] 3 VR 567, consideredR v
Reddell [2001] QCA 515
CA No 286 of 2001, 16 November 2001,
consideredR v Scott [2000] NSWCCA 187
[2000] 112 A Crim R 543, followedR v
Uhrig Court of Criminal Appeal (NSW), No 60200 of 1996, 24 October 1996,
consideredR v Walton CA No 257 of 1989, consideredR v
Weatherall [2001] QCA 435
CA No 94 of 2001, 12 October 2001,
followedR v Zreika [2001] NSWCCA 57, followedRPS v The
Queen [2000] HCA 3
(2000) 199 CLR 620, followed
Judgment (21 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION - TRAFFICKING - OTHER MATTERS - whether the learned trial judge erred in accepting the indictment which alleged trafficking in various drugs listed in both Schedule 1 and Schedule 2 of the _Drugs Misuse Ac_t 1986 - whether the learned trial judge erred when addressing the jury when taking their verdict that it was sufficient to prove trafficking in any one of the drugs referred to in the charge. CRIMINAL LAW - JURISDICITON PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRUG OFFENCES - where charges relate to both Schedule 1 and Schedule 2 drugs - whether need for a special verdict - Sentencing judge may rely on section 132C of the Evidence Act in order to determine which drugs were involved in the trafficking - where a "circumstance of aggravation" had to be charged in the indictment and specifically proven. CRIMINAL LAW - JURISDICITON PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - FINAL ADDRESS OF COUNSEL FOR CROWN - GENERALLY - whether a Crown Prosecutor may not in his final address to the jury deal with issues of credit including whether witnesses had possible motives to lie. CRIMINAL LAW - JURISDICITON PRACTICE AND PROCEDURE - SUMMING UP - whether learned trial judge erred in directing jury regarding the accused's failure to call evidence when in fact witnesses were non-compellable - whether such a direction caused a miscarriage of justice CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING - where circumstance of aggravation required evidence of the actual quantity of the drug to exceed the prescribed amount. CRIMINAL LAW - JURISDICTION PRACTICE AND PROCEDURE - JUDGEMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES - consideration of R v Walton CA No 257 of 1989, R v Corrigan[2001] QCA 251, R v Everett[1999] QCA 14 as comparable sentences. The appellant was sentenced to imprisonment for a period of 10 years for trafficking in a dangerous drug and for a period of 8 years for the production of a dangerous drug with the sentences to be served concurrently. Criminal Code (Qld)