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R v Abell

R v Abell

Case [2007] QCA 448 19 December 2007

Appeal

Miscarriage of Justice

Natural Justice & Procedural Fairness

Misdirection and Non-Direction

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Abell [2007] QCA 448

PARTIES:

R
v
ABELL, Dean Colin
(appellant)

FILE NO/S:

CA No 261 of 2007
DC No 192 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

19 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2007

JUDGES:

McMurdo P, Holmes JA and Muir JA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – where appellant was examined under s 24A Australian Crime Commission Act 2002 (Cth) – where appellant not advised by the examiner that he was entitled to legal representation under s 25A(2) Australian Crime Commission Act 2002 (Cth) – where there was no obligation for the examiner to issue such advice – where appellant claimed that proceedings were not conducted fairly because he appeared to be ill – where examiner inquired if something was wrong before continuing with examination – where appellant claims to have been denied natural justice and procedural fairness – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where directions were given as to whether the appellant had consciously refused to answer a question posed by the examiner – where the appellant claimed he had expressed an inability to answer – where no direction was issued to that effect – whether this amounted to a misdirection

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL –where the whole transcript of the examination was tendered as evidence – where the appellant claimed that a miscarriage of justice had resulted from the tendering of the whole transcript – where the appellant relied upon the same parts of the transcript objected to – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – whether the sentencing judge erred in exercising the sentencing discretion – whether the sentence imposed was manifestly excessive

Australian Crime Commission Act 2002 (Cth), s 24A, s 25A(2), s 30(2), s 30(4), s 30(5), s 46B(1)

Lambert v McIntyre; Ex parte Lambert [1975] Qd R 349, considered

COUNSEL:

A J H Morris QC for the appellant
M C Chowdhury for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Commonwealth Director of Public Prosecutions for…

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 R v Abell

Details

AGLC: R v Abell [2007] QCA 448
Case: [2007] QCA 448
Decision Date: 19 December 2007

CaseChat Overview and Summary

The appellant, Abell, sought to appeal against his conviction on the grounds that there had been a miscarriage of justice during his examination under the Australian Crime Commission Act 2002 (Cth). The appellant argued that he was not advised of his right to legal representation, which he claimed resulted in unfair proceedings. Additionally, Abell argued that the proceedings were not conducted fairly because he appeared to be ill during the examination. The appellant further contended that the whole transcript of the examination was tendered as evidence, which he claimed resulted in a miscarriage of justice.

The court was required to decide whether there was a miscarriage of justice due to the appellant not being advised of his right to legal representation, whether the examination was conducted unfairly because the appellant appeared to be ill, whether the absence of a direction that the appellant had expressed an inability to answer amounted to a misdirection, and whether the tendering of the whole transcript as evidence resulted in a miscarriage of justice. The court also needed to determine whether the sentencing judge had erred in exercising the sentencing discretion and whether the sentence imposed was manifestly excessive.

The court found that there was no obligation for the examiner to advise the appellant of his right to legal representation. The court also found that the examiner had inquired if something was wrong before continuing with the examination, and that there was no miscarriage of justice as a result of the appellant not being advised of his right to legal representation. The court further found that the examination was not conducted unfairly because the appellant appeared to be ill. The court held that the absence of a direction that the appellant had expressed an inability to answer did not amount to a misdirection, as the appellant had not expressed such an inability. Finally, the court found that the tendering of the whole transcript as evidence did not result in a miscarriage of justice.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Abell [2007] QCA 448

Most Recent Citation

R (on the application of the Chief Examiner) v DF (No 2) [2014] VSC 213

Cases citing this decision · 12 of 12 shown

Calvet v The Commissioner of Police
[2020] QDC 161 Para 29

…tence is called for to ensure that orders of the kind to which the offence relates do not become a ‘ toothless paper tiger’[2] . [2] cf R v Abell [2007] QCA 448, [33]…
R v Michael (a pseudonym) (No 2)
[2020] VSC 391 Para 1

…the need for salutary punishment to ensure that the regime provided for in the Act does not become a ‘toothless paper tiger’.[23] [23] R v Abell [2007] QCA 448, [33]. In the context of this regime see: DF, [27] – [28]; QF, [31] – [32]; R v Debono [2013] VSC 413, [34]; R v Brigham [2018] VSC 284, [57]; R v Murray…
Anderson v GPY18
[2019] FCA 954 Para 2

…The defendant was sentenced to imprisonment for 12 months with a direction that the sentence be served by way of periodic detention. (6) In R v Abell [2007] QCA 448, an appellant who was examined under s 24A of the Act refused to answer questions and was sentenced to 12 months imprisonment to be released on recog…
Michael Murray v The Chief Examiner
[2018] VSCA 144 Para 1

…er the examiner’s questions’.[55] The judge sentenced the applicant to eight months’ imprisonment.[56] [55]Ibid [52], quoting R v Abell [2007] QCA 448 [33]. [56]Ibid [55].…
R v Murray
[2018] VSC 133 Para 1

…activities by impinging on the common law right to silence and compelling witnesses to answer the examiner’s questions’.[27] [27] R v Abell [2007] QCA 448 [33], cited in R v Neil Smith [2017] VSC 708R [61] and [106] (Jane Dixon J). Also see R v DF [2014] VSC 213 [27]–[28] (John Dixon J); R v QF [2014] VSC 81 [31]…
Forsyth v The Queen
[2015] WASCA 36 Para 3

…(Qld) [2008] QCA 341; Mercanti v The Queen [2011] WASCA 120; (2011) 249 FLR 223; (2011) 210 A Crim R 213; R v Drever [2010] SASCFC 27 and R v Abell [2007] QCA 448. The last three cases concern offences committed under s 30(2) of the Act.…
R (on the application of the Chief Examiner) v DF (No 2)
[2014] VSC 213 Para 1

…h (No 2) (2011) 205 A Crim R 386, R v Drever [2010] SASCFC 27, Field v NSW Crime Commission [2009] NSWCA 144, R v El Kholed [2009] QSC 335, R v Abell [2007] QCA 448, Principal Registrar of the Supreme Court of NSW v Tran [2006] NSWSC 1183, R v Razzak (2006) 166 A Crim R 132, Commissioner for Police Integrity Comm…
Hannaford (an examiner under section 46B of the Australian Crime Commission Act 2002) v HH (No 2)
[2012] FCA 560 Para 7

…er than imprisoned [40]. The court imposed a fine of $10,000 for each contempt, being a total of $30,000. [235]In R v Abell [2007] QCA 448, the appellant was convicted, after a trial, of one count of refusing to answer a question at an Australian Crime Commission examination, contrary to s 30(2)(b) of the Austral…
Allbeury v Corruption and Crime Commission
[2012] WASCA 84 Para 2

…ober 1991) (Slattery AJ); Wood [No 5] ; Registrar, Criminal Division, Supreme Court of New South Wales v Glasby [1999] NSWSC 846; Kennedy ; R v Abell [2007] QCA 448; R v Drever [2010] SASCFC 27.…
R v Perry
[2011] QCA 236 Para 1

…s one or more offences of giving false evidence.[25] A head sentence of 12 months imprisonment in respect of count two is appropriate. [24] R v Abell [2007] QCA 448. [25] R v Abell [2007] QCA 448; R v Bazzo (Unreported, District Court, Brisbane, 31 May 2010, Jones DCJ); R v Cleave (Unreported, District Court, Sou…
R v Drever
[2010] SASCFC 27 Para 19

…ght to silence and compelling witnesses to answer the examiner's questions. [Emphasis added] I respectfully adopt these observations. [8] R v Abell [2007] QCA 448 at [33].…
R v Kim, Gwan Hong
[2008] NSWDC 349

…/6/1994 R v Einfeld [2008] NSWCCA 215 R v Daniel James Rodd (Qld Supreme Court, per Wilson J, 27/6/08) R v Nash (2008) SASR 109 R v Dean Colin Abell [2007] QCA 448 R v Geoffrey John Seaniger (Qld Supreme Court, per Mullins J, 4/5/07) R v Jim Kafritsas (Victorian County Court, per Dyggan J, 13/4/07) R v Michael Jo…

View all 12 citing cases →

Cases cited in this decision · 0 of 0 shown

No cases cited.

Legislation cited in this decision · 2

Australian Crime Commission Act 2002 (Cth)
24A 2 mentions (from Para 1)
Traffic Act 1949 (Qld)
1 mention (from Para 1)

CITATION:	R v Abell [2007] QCA 448
PARTIES:	R v ABELL, Dean Colin (appellant)
FILE NO/S:	CA No 261 of 2007 DC No 192 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	19 December 2007
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2007
JUDGES:	McMurdo P, Holmes JA and Muir JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – where appellant was examined under s 24A Australian Crime Commission Act 2002 (Cth) – where appellant not advised by the examiner that he was entitled to legal representation under s 25A(2) Australian Crime Commission Act 2002 (Cth) – where there was no obligation for the examiner to issue such advice – where appellant claimed that proceedings were not conducted fairly because he appeared to be ill – where examiner inquired if something was wrong before continuing with examination – where appellant claims to have been denied natural justice and procedural fairness – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where directions were given as to whether the appellant had consciously refused to answer a question posed by the examiner – where the appellant claimed he had expressed an inability to answer – where no direction was issued to that effect – whether this amounted to a misdirection CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL –where the whole transcript of the examination was tendered as evidence – where the appellant claimed that a miscarriage of justice had resulted from the tendering of the whole transcript – where the appellant relied upon the same parts of the transcript objected to – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – whether the sentencing judge erred in exercising the sentencing discretion – whether the sentence imposed was manifestly excessive Australian Crime Commission Act 2002 (Cth), s 24A, s 25A(2), s 30(2), s 30(4), s 30(5), s 46B(1) Lambert v McIntyre; Ex parte Lambert [1975] Qd R 349, considered
COUNSEL:	A J H Morris QC for the appellant M C Chowdhury for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Commonwealth Director of Public Prosecutions for…