Behan v The Queen

Case [2000] WASCA 204

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   BEHAN -v- THE QUEEN [2000] WASCA 204

CORAM:   KENNEDY ACJ

MURRAY J
PARKER J

HEARD:   6 JUNE 2000

DELIVERED          :   6 JUNE 2000

PUBLISHED           :  4 AUGUST 2000

FILE NO/S:   CCA 233 of 1999

BETWEEN:   RAYMOND VALENTINE BEHAN

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Evidence - Lie by accused - Relied on by Crown as evidence of guilt - Whether directions to jury adequate

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Retrial ordered

Representation:

Counsel:

Applicant:     Mr O P Holdenson QC & Mr B R Jackson

Respondent:     Mr J A Scholz

Solicitors:

Applicant:     Pryles & Defteros

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Edwards v The Queen (1993) 178 CLR 193

Jones v The Queen (1997) 191 CLR 439

M v The Queen (1994) 181 CLR 487

Pereira v Director of Public Prosecutions (1988) 63 ALJR 1

Case(s) also cited:

Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581

Caine (1990) 48 A Crim R 464

Chidiac & Asfour v R (1991) 171 CLR 432

Clarke v Johnstone [1986] VR 643

Cutter v R (1997) 143 ALR 498

Gipp v R (1998) CLR 106

Glennon v R (1994) 179 CLR 1

He Kaw Teh v The Queen (1985) 157 CLR 523

Healy v R (1995) 15 WAR 104

Knight v R (1992) 175 CLR 495

Mraz v R (1955) 93 CLR 493

Natesan v R (1996) 134 FLR 199

Palmer v R (1998) 193 CLR 1;

Pizzata v The Queen, unreported; SCt of WA; 29 October 1993; Library No 93059

Prasad v R (1994) 119 ALR 399

R v Burke (1997) 96 A Crim  334

R v Cervelli [1998] 3 VR 776

R v Cheung (1997) 97 A Crim R 282

R v Ellis (1998) 100 A Crim R 49

R v Franks (No 2) (1999) 105 A Crim R 377

R v Gaffney (1968) VR 417

R V Gallagher [1998] 2 VR 671

R v Grosser (1999) 106 A Crim R 125

R v Kelly (1975) 12 SASR 389

R v Laz [1998] 1 VR 453

R v Leff (1996) 86 A Crim R 212

R v Moran & Mokbel [1999] 2 VR 87

R v Nifadopolous (1988) 36 A Crim R 137

R v Renzella (1997) 2 VR 88

R v Seiffert & Stupar (1999) 104 A Crim R 238

R v ST (1997) A Crim R 390

R v Storey (1978) 140 CLR 364

R v Su & Ors [1997] 1 VR 1

R v Tannous (1987) 10 NSWLR 303

R V Zakaria (1992) 62 A Crim R 259

Tripodina and Morabito (1988) 35 A Crim R 183

  1. JUDGMENT OF THE COURT: The applicant sought leave to appeal against his convictions on 25 October 1999 after a trial in the District Court on three counts of being knowingly concerned in the importation of a prohibited import, namely narcotic…

Continue reading Behan v The Queen

Sign in free to access the full text

Details
AGLC
Behan v The Queen [2000] WASCA 204
Case
[2000] WASCA 204
Decision Date

CaseChat Overview and Summary

Behan v The Queen involved the applicant challenging his convictions for being knowingly concerned in the importation of a prohibited import, specifically MDMA in tablet form commonly known as Ecstasy. The case was heard in the District Court and subsequently the High Court of Australia. The applicant contested his convictions on three counts under s 233B(i) of the Customs Act 1901 (Cth). The core of the applicant's argument was that the trial judge's directions to the jury about a lie he allegedly told were inadequate, and that the jury should have been directed to consider alternative reasons for the lie other than guilt and fear of the truth. Additionally, the applicant argued that the jury should have been required to find beyond reasonable doubt that he lied due to guilt and fear of the truth. The third ground for appeal was that the jury's verdicts were unsafe and unsatisfactory as the Crown failed to exclude a rational hypothesis consistent with innocence, specifically that the applicant was unaware of the contents of the envelopes.

The High Court examined whether the trial judge's instructions to the jury adequately covered the nuances of why the applicant might have lied. It was held that the trial judge did not sufficiently direct the jury on the various possible reasons for the applicant's alleged lie, nor did she require the jury to find beyond reasonable doubt that the lie was due to guilt and fear of the truth. This omission was considered a significant error as it potentially impacted the jury's assessment of the applicant's credibility and the weight they ascribed to his account. The Court concluded that these errors in the jury directions were substantial enough to warrant a retrial. Consequently, the High Court allowed the appeal on the second ground and ordered a retrial, remanding the applicant to the District Court for this purpose.

Orders

Orders of the court

Full text does not contain this section.

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

MURRAY J
JUDGMENT OF THE COURT: The applicant sought leave to appeal against his convictions on 25 October 1999 after a trial in the District Court on three counts of being knowingly concerned in the importation of a prohibited import, namely narcotic goods. The narcotic goods were methylenedioxymethamphetamine (MDMA) in tablet form commonly known as Ecstasy. The counts were laid under s 233B(i) of the Customs Act 1901 (Cth). As amended at the hearing the application was pursued on three grounds:1.The convictions were unsafe or unsatisfactory in that they were against the weight of the evidence.2.The learned trial Judge erred in her directions to the jury concerning the lie said by the Crown to have been told by the applicant in signing the statement.Particulars(i)The learned trial Judge failed to direct the jury that there may be reasons for the telling of a lie apart from the realisation of guilt and a fear of the truth.(ii)The learned trial Judge failed to direct the jury that the jury must find beyond reasonable doubt that the applicant lied because of the realisation of guilt and a fear of the truth.3.The verdicts of the jury are unsafe and unsatisfactory in that no reasonable jury could have convicted the applicant in circumstances where the Crown did not exclude a rational hypothesis consistent with innocence, namely that the applicant did not know the nature of the contents of the three envelopes. After hearing argument the Court was unanimously of the view that the leave should be granted and the appeal allowed on ground 2. It ordered that the accused should be retried and for this purpose the accused was remanded to the District Court. The Court was not persuaded that grounds 1 and 3 were made out. The Court indicated that its reasons for decision would be published later and it now does so. The applicant was tried with his brother Mitchell. Mitchell gave evidence at trial in which he denied that he or the applicant were involved in the importation. Mitchell suggested that someone may have been trying to "set him up". The applicant did not give evidence. Both the applicant and Mitchell were convicted of the three offences. The applicant and his brother, Mitchell, left Australia on 24 January 1997 and travelled via London to Ireland. The applicant arrived back in Perth on 12 February 1997. His brother did not return until 24 February 1997. The Crown alleged that the applicant's brother Mitchell had arranged for three envelopes to be posted from London to three different addresses in Perth. The addresses were (1) a post office box of the applicant at Wangara; Mitchell also used this post office box; (2) 11 Rosslyn Street, West Leederville which was the business premises of a company of the applicant and also the business premises of a business conducted by Mitchell; and (3) the home of the parents of the applicant and Mitchell. While staff, including their mother, had access to the mail box at 11 Rosslyn Street, and the parents as well as the applicant had access to the parents' mailbox, only the applicant and Mitchell had access to all three mailboxes. Mitchell was still overseas when the three envelopes were delivered in Perth. Each of the three envelopes were addressed to fictitious addressees. It was also the Crown case that the senders' names and addresses on the back of the envelopes were fictitious. It was the Crown case that Mitchell had pre-arranged for the applicant to collect the envelopes in Perth knowing that they contained the prohibited import. While the applicant did not give evidence during the trial he had given an account to the Australian Federal Police and he had written out a short statement. These were in evidence.

Ratio Decidendi

Legal Principle Established

Established by: MURRAY J

Full text does not contain this section.