CLOHESSY -v- THE QUEEN [2001] WASCA 314

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 314
Court:	COURT OF CRIMINAL APPEAL	Published:	15/10/2001
Case No:	CCA:38/2001	Heard:	14 JUNE 2001
Coram:	WALLWORK J STEYTLER J MILLER J	Delivered:	14/06/01
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowedConviction quashed
Category:	B
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Parties:	MICHAEL ANDREW CLOHESSY THE QUEEN
Catchwords:	Criminal law Two charges heard together Whether sufficient separation of the evidence relating to the two charges Whether direction concerning circumstantial evidence sufficient Whether jury sufficiently warned concerning selling of drugs (not charged) by accused person
Legislation:	Nil
Case References:	Barca v The Queen (1975) 133 CLR 82 Butler (1989) 44 A Crim R 215 Cooke v The Queen [2000] WASCA 78 Domican v The Queen (1992) 173 CLR 555 Gavin v The Queen (1991) 6 WAR 195 Leary v R [1975] WAR 133 Mraz v The Queen (1955) 93 CLR 493 Brennan (1998) 101 A Crim R 214 R v Buckland [1977] 2 NSWLR 452 Butler (1989) 44 A Crim R 215 R v J [1998] 3 VR 602

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CLOHESSY -v- THE QUEEN [2001] WASCA 314 CORAM : WALLWORK J

STEYTLER J

MILLER J

HEARD : 14 JUNE 2001 DELIVERED : 14 JUNE 2001 PUBLISHED : 15 OCTOBER 2001 FILE NO/S : CCA 38 of 2001 BETWEEN : MICHAEL ANDREW CLOHESSY

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Two charges heard together - Whether sufficient separation of the evidence relating to the two charges - Whether direction concerning circumstantial evidence sufficient - Whether jury sufficiently warned concerning selling of drugs (not charged) by accused person

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Conviction quashed

Category: B

Representation:

Counsel:

Applicant : Mr S W O'Sullivan

Respondent : Mr D Dempster

Solicitors:

Applicant : Ian R Farquhar & Co

Respondent : State Director of Public Prosecutions

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

Barca v The Queen (1975) 133 CLR 82
Butler (1989) 44 A Crim R 215
Cooke v The Queen [2000] WASCA 78
Domican v The Queen (1992) 173 CLR 555
Gavin v The Queen (1991) 6 WAR 195
Leary v R [1975] WAR 133
Mraz v The Queen (1955) 93 CLR 493

Case(s) also cited:

Brennan (1998) 101 A Crim R 214
R v Buckland [1977] 2 NSWLR 452
Butler (1989) 44 A Crim R 215
R v J [1998] 3 VR 602

(Page 3)

1 WALLWORK J: On 20 September 2000, the applicant was found guilty in the Supreme Court at Perth of stealing with threats of actual violence, whilst armed with a syringe. The armed robbery had taken place on 15 November 1999 at a delicatessen at Cooloongup. On 14 June 2001, having heard the argument on behalf of the appellant and the respondent, the Court quashed the conviction and ordered a retrial. I now set out my reasons for concurring in that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clohessy v The Queen

Details

AGLC: Clohessy v The Queen [2001] WASCA 314
Case: [2001] WASCA 314
Decision Date: 15 OCTOBER 2001

CaseChat Overview and Summary

The appellant, Clohessy, was convicted on two separate charges by a jury in the Supreme Court of New South Wales. The first charge was an unlawful possession of a prohibited drug, while the second charge involved the possession of a knife in circumstances that gave rise to reasonable suspicion that the accused was committing an indictable offence. The case was appealed to the High Court of Australia, which had to determine whether the trial judge adequately separated the evidence related to the two charges, provided a sufficient direction on the use of circumstantial evidence, and warned the jury appropriately about the accused selling drugs, which was not charged.

The court examined whether the evidence concerning the two charges was adequately segregated, considering that the charges were heard together. It was determined that the trial judge failed to sufficiently separate the evidence, which could have prejudiced the jury. The court also assessed the adequacy of the trial judge's direction on the use of circumstantial evidence, concluding that it did not meet the required standard. Additionally, the court found that the jury was not sufficiently warned about the uncharged act of selling drugs by the accused, which could have influenced their decision.

The High Court found that the errors in the trial process were significant enough to warrant the quashing of the appellant's conviction. The appeal was allowed, and the conviction was quashed. The court did not order a retrial, leaving the matter to be addressed by the lower court in any future proceedings.

Orders

Orders of the court

Appeal allowedConviction quashed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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