Durham v The Queen

Case [2016] WASCA 121

DURHAM -v- THE QUEEN [2016] WASCA 121



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASCA 121
THE COURT OF APPEAL (WA)
Case No:CACR:141/201512 APRIL 2016
Coram:McLURE P
BUSS JA
MAZZA JA		13/07/16
31Judgment Part:1 of 1
Result: Leave to appeal on proposed ground 2 refused
Appeal dismissed
B
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Parties:VAUGHAN MAURICE DURHAM
THE QUEEN

Catchwords:
Criminal law
Appeal against conviction
Importing a marketable quantity of a border controlled drug
Whether a miscarriage of justice was occasioned by the learned trial judge's failure to direct the jury that no adverse inference could be drawn against the appellant by reason of him exercising his right to silence
Whether a miscarriage of justice was occasioned by the Crown's reliance on evidence adduced at trial that money was 'illegally obtained' as evidence that the appellant was of bad character
Proviso

Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Code (Cth), s 307.2(1)
Criminal Investigation Act 2006 (WA)

Case References:
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Durani v The State of Western Australia [2012] WASCA 172
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
McMahon v The State of Western Australia [2010] WASCA 143
MJS v The State of Western Australia [2011] WASCA 112
Petty v The Queen [1991] HCA 34; (1991) 173 CLR 95
SAM v The State of Western Australia [No 2] [2016] WASCA 64
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zanon v The State of Western Australia [2016] WASCA 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DURHAM -v- THE QUEEN [2016] WASCA 121 CORAM : McLURE P
    BUSS JA
    MAZZA JA
HEARD : 12 APRIL 2016 DELIVERED : 13 JULY 2016 FILE NO/S : CACR 141 of 2015 BETWEEN : VAUGHAN MAURICE DURHAM
    Appellant

    AND

    THE QUEEN
    Respondent


ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : BRADDOCK DCJ

File No : IND 1415 of 2014


Catchwords:

Criminal law - Appeal against conviction - Importing a marketable quantity of a border controlled drug - Whether a miscarriage of justice was occasioned by the learned trial judge's failure to direct the jury that no adverse inference could be drawn against the appellant by reason of him exercising his right to silence - Whether a miscarriage of justice was occasioned by the Crown's reliance on evidence adduced at trial that money was 'illegally obtained'…

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AGLC
Durham v The Queen [2016] WASCA 121
Case
[2016] WASCA 121
Decision Date

CaseChat Overview and Summary

The case of Durham v The Queen involved the appellant's appeal against his conviction for importing a marketable quantity of a border controlled drug. The appeal was heard in the High Court of Australia, which was tasked with determining whether a miscarriage of justice had occurred due to the trial judge's failure to instruct the jury regarding the appellant's right to silence and whether the Crown's reliance on evidence that money was 'illegally obtained' constituted an improper character attack. The court's decision was crucial in evaluating the fairness of the trial and the validity of the conviction.

The primary legal issues the court had to address were whether the trial judge's omission to direct the jury about the appellant's right to silence amounted to a miscarriage of justice and whether the Crown's use of evidence pertaining to 'illegally obtained' money was an inappropriate character attack. The court examined the implications of these issues on the fairness of the trial and the reliability of the evidence presented. The court's resolution of these issues was pivotal in determining the validity of the appellant's appeal against his conviction.

In delivering its judgment, the court concluded that the trial judge's failure to instruct the jury about the appellant's right to silence did not result in a miscarriage of justice. The court found that the evidence presented against the appellant was compelling and that his silence did not play a decisive role in the jury's decision. Additionally, the court held that the Crown's reference to 'illegally obtained' money was not an impermissible character attack, as it was directly related to the offence for which the appellant was charged. Consequently, the court dismissed the appeal and refused the appellant's request for leave to appeal on the proposed grounds. This decision affirmed the conviction and highlighted the importance of adhering to procedural fairness in criminal trials.

Orders

Orders of the court

Leave to appeal on proposed ground 2 refused

Appeal dismissed

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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