R v Morrison [1998] QCA 162 - QCA 1998 case summary — Zoe

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R v Morrison [1998] QCA 162

[1998] QCA 162

Court of Appeal (Qld)|1998-06-26|Before: Before Fitzgerald P, Davies J, Pincus J, Williams J, Fryberg J, As Pincus J, Fitzgerald P

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At a glance

Source facts

Court

Court of Appeal (Qld)

Decision date

1998-06-26

Before

Before Fitzgerald P, Davies J, Pincus J, Williams J, Fryberg J

Source

Original judgment source is linked above.

Judgment (143 paragraphs)

[1]

The applicant pleaded guilty to a charge that he unlawfully had possession of a dangerous drug, namely heroin, the quantity of which exceeded 2 grams, and to a further charge that he unlawfully had possession of a dangerous drug, namely cocaine. On the heroin charge he was sentenced to imprisonment for a period of 10 years with a recommendation that he be eligible for parole after serving 3½ years, and on the cocaine charge he was sentenced to 9 months imprisonment; the sentences to be served concurrently. He seeks leave to appeal against the sentence imposed for possession of heroin on the ground that it was manifestly excessive. There was an issue before the learned sentencing judge as to whether the applicant had possession of the drug solely for his own use, or for a commercial purpose. In the sentencing remarks reference was made to Queen v Nardozzi [1995] 2 Qd.R. 87, where the Court of Appeal confirmed that on a sentence the Crown bore the onus of proving on the balance of probabilities any additional relevant circumstances. However, after reviewing the material before him, the learned sentencing judge concluded that the "Crown satisfied me beyond reasonable doubt that you had possession of this large amount of heroin for commercial purposes." Before this Court the applicant wishes to contend that such finding ought not to have been made, and that he should have been sentenced on the basis that he had the heroin solely for his own use.

[2]

Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Morrison \[1998\] QCA 162

Legislation Cited (2)

Sentences Act 1992

Corrective Services Act 1988

Cases Cited (39)

The second reason, elaborated on in the reasons of the President, is the desirability for uniformity throughout Australia. Unless we are convinced that the decisions of the other state appellate courts, which now adopt a generally uniform approach, are wrong I think we should follow them. To that should be added the persuasive force of the majority view in Anderson v. R. [1993] HCA 59; (1993) 177 C.L.R. 520.

To prove that an offence, serious or trivial, has been committed, the prosecution has to prove its case beyond reasonable doubt; more generally, proof of guilt is hedged about with a multitude of safeguards, and a verdict may be vitiated by an error of an entirely technical character: see for example Maher [1987] HCA 31; (1987) 163 C.L.R. 221.

An example of a situation in which the sentencing hearing seemed more important than the determination of guilt and innocence is to be found in the sentencing of one Savvas to 25 years imprisonment for drug offences (see Savvas [1995] HCA 29; (1995) 183 C.L.R. 1). He was convicted of conspiracy. At sentencing the primary judge found 32 facts which had been established against Savvas - "a long series of facts relating to the importation and supply of heroin and [Savvas'] involvement": Savvas (No. 2) (1991) 58 A.Crim.R. 174 at 178. These additional facts in themselves established serious offences, committed following the making of the agreement which constituted or initiated the conspiracies. The judge's findings resulted in Savvas' sentences being substantially more than they would have been, had the judge's findings not been made. A more familiar example of a case in which the sentencing judge's role can be dominant is that of manslaughter, where the plea or verdict of guilty may not in itself convey anything of consequence about the degree of heinousness of the offence.

Another, less obvious problem than the looseness of the "informing" process is that the "beyond reasonable doubt" requirement which applies to the finding of guilt has application only to ultimate facts and to those facts which form part of a single chain of reasoning leading to a finding of the ultimate facts. To illustrate the point in a practical way, if one of the strands of proof relied on is confessional evidence, another is eyewitness evidence, and there are other strands, the jury need not be told that they must be satisfied beyond reasonable doubt of the veracity of any single category of evidence; they may convict if satisfied to that standard of all the elements of the offence: Shepherd [1990] HCA 56; (1990) 170 C.L.R. 573 at 579.

In Storey, at p. 372, the majority said in effect that it is "the relevant issue . . . not each of the individual facts which is said to bear upon the issue" which must be proved, on sentencing, beyond reasonable doubt. Identification of those facts which require such proof at trial is not necessarily a simple matter; Shepherd was a retraction of what was said on that subject in Chamberlain [No. 2] [1984] HCA 7; (1984) 153 C.L.R. 521 at 536, 538. One finds in the authorities suggestions of means of discriminating between those sentencing facts which do and those which do not require specially strict proof, one of the simplest definitions of the former being the "details of the offence" (Welsh [1983] 1 Qd.R. 592 at 594) and another "the circumstances of the offence" (Ali [1996] VicRp 56; [1996] 2 V.R. 49 at 60, 61). If those expressions mean the elements of the offence, then there is no difficulty, but if not their meaning remains obscure. Applying two different rules, depending on whether the fact in question tends to aggravate or mitigate, is a clear enough concept; but in many situations it will be awkward to use - as for example when trying to gain a true picture of the relationship between a couple, one of whom has killed the other. The result of a conscientious application of the Storey rule might be to arrive at a description of the relationship which the judge does not believe to be true, produced by using a different standard of proof, as to the matters relied on by one side, from that by which the other side's evidence is judged. Of course, this outcome may be especially likely when what is in issue is the true motive of the offender, or any other fact peculiarly or mainly within his or her own knowledge. More simply, if the person convicted of manslaughter by shooting asserts and the Crown denies that he did not know the gun was loaded, the question whether one treats the issue as one of aggravation or of mitigation can receive, we are inclined to think, no better than an arbitrary answer. We note that in Storey Calloway J.A. suggested a further subdivision: that there should be an exception to the general rule, for "circumstances of mitigation extraneous to the offence" (376). But the majority in Storey appeared to require a three-way division of the issues: those ultimate issues, as to which proof is required beyond reasonable doubt; the "individual facts" which are judged by some lesser standard; lastly, mitigating facts, as to which the onus is, presumably, on the defence to prove such matters on the balance of probabilities. We say "presumably" because the judges did not accept "that the Crown bears any general onus of proving the facts that form the basis for sentencing".

(1993) 177 CLR 520

(1963) 109 CLR 559

(1938) 60 CLR 336

(1981) 147 CLR 383

(1985) 159 CLR 264

(1979) 2 NSWLR 582

(1976) 14 SASR 240

(1974) 24 FLR 1

(1996) 17 WAR 346

(1997) 41 NSWLR 374

(1990) 169 CLR 245

(1994) 2 VR 659

(1997) 188 CLR 1

(1938) 59 CLR 124

(1997) 71 ALJR 818

(1989) 169 CLR 1

(1992) 175 CLR 1

(1992) 177 CLR 292

(1993) 178 CLR 477

(1994) 179 CLR 520

(1996) 138 ALR 577

(1997) 143 ALR 328

(1997) 71 ALJR 1102

(1915) 20 CLR 425

(1997) 151 ALR 395

(1991) 102 ALR 673

(1993) 177 CLR 485

(1995) 36 NSWLR 541

(1995) 184 CLR 265

(1995) 129 ALR 326

(1996) 138 ALR 689

(1941) 65 CLR 289

(1995) 36 NSWLR 567

(1995) 38 NSWLR 714