Finn v The Queen - [2012] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0156

WAYNE PATRICK FINN
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, MANDIE and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2012
DATE OF JUDGMENT:	16 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 46
JUDGMENT APPEALED FROM	R v Finn and Finn [2011] VSC 253 (Nettle JA)

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CRIMINAL LAW – Application for leave to appeal against conviction – Whether verdicts of guilty on two counts of possession of more than a prescribed quantity of a precursor chemical without lawful excuse and one count of possession of a drug of dependency were unreasonable because they were inconsistent with acquittals of co-accused and/of applicant on various charges – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D P Sheales	G W Lawyers
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
MANDIE JA
HARPER JA:

On 3 June 2011, the applicant[1] was found guilty by a Supreme Court jury of three drug offences under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the Act’), namely possession of more than a prescribed quantity of a precursor chemical (formaldehyde) without authorisation or lawful excuse[2] (Count 7), possession of more than a prescribed quantity of a precursor chemical (ammonia) without authorisation or lawful excuse[3] (Count 8) and possession of a drug of dependence (phenyl-2-propanone)[4] (‘P2P’) (Count 11). The applicant seeks leave to appeal against conviction on the ground that these verdicts are unreasonable as they are inconsistent with the jury’s acquittal of the applicant and of a co-accused on a number of other charges.
[1]The application for leave to appeal was referred to a full bench of the Court by Bongiorno JA on 8 December 2011.
[2]Section 71D of the Act.
[3]Section 71D of the Act.
[4]Section 73(c) of the Act.

The applicant and his brother, Matthew Finn (‘the co-accused’), were jointly tried on a number of charges including the above Counts 7, 8 and 11. The other relevant counts were trafficking in methyl-amphetamine by manufacture (Count 3), trafficking in MDMA by manufacture (Count 4), trafficking in P2P in a large commercial quantity[5] (Count 5) and possession of equipment being glassware and scientific apparatus with the intention of using the items for the purpose of trafficking in a drug of dependence (Count 6). There was in effect an alternative (and lesser) charge to Count 5, namely trafficking in P2P by having it in possession for sale.[6] Count 11 (possession of P2P) was in effect a further (and lesser) alternative to Count 5. The applicant was acquitted on Counts 3 to 6. His co-accused was acquitted on all relevant charges (i.e. Counts 3-8 and 11). In the above summary, we have referred to ‘the other relevant counts’. Counts 1 and 2[7] related to other premises and we are satisfied that the acquittals of the applicant and the co-accused on Counts 1 and 2 have no bearing on the issues now…

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 Finn v The Queen

Details

AGLC: Finn v The Queen [2012] VSCA 46
Case: [2012] VSCA 46
Decision Date: 16 March 2012

CaseChat Overview and Summary

The matter involved Finn who was appealing against his conviction and sentence in the Supreme Court of Queensland. Finn was convicted of two counts of possession of more than a prescribed quantity of a precursor chemical without lawful excuse and one count of possession of a drug of dependency. Finn sought leave to appeal against his conviction on the basis that the verdicts were unreasonable due to their inconsistency with the acquittals of his co-accused on various charges. The court was tasked with determining whether the verdicts were unreasonable given the acquittals of co-accused and Finn on other charges, and if the appeal should be granted.

The legal issue before the court was whether the verdicts were unreasonable, specifically due to the inconsistency with the acquittals of co-accused and Finn on other charges. The court needed to assess whether the jury's reasoning in convicting Finn, while acquitting others, could be considered unreasonable. The court examined whether the verdicts could be sustained despite the acquittals and if the jury's reasoning demonstrated an error of law or a significant miscarriage of justice.

The court concluded that the verdicts were not unreasonable, despite the acquittals of co-accused and Finn on other charges. The court found that the jury's reasoning, which took into account the differing roles and involvement of each accused, did not demonstrate an error of law or a significant miscarriage of justice. The court held that the jury was entitled to convict Finn on the charges in question, and the acquittals of others did not render the verdicts unreasonable. As a result, the application for leave to appeal was dismissed.

No further orders were made by the court. The dismissal of the application meant that Finn's conviction and sentence stood as originally determined by the Supreme Court of Queensland.

Orders