R v Baggaley - [2023] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v Baggaley [2023] QCA 249

PARTIES:

R
v
BAGGALEY, Dru Anthony
(appellant)

FILE NO/S:

CA No 84 of 2021
SC No 881 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 April 2021 (A Lyons SJA)

DELIVERED ON:

8 December 2023

DELIVERED AT:

Brisbane

HEARING DATES:

20 July 2023; 24 November 2023

JUDGES:

Dalton and Flanagan and Boddice JJA

ORDERS:
1.   Appeal allowed.

2.   Verdict set aside.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of attempting to import a commercial quantity of a border controlled drug, namely cocaine – where the appellant had given his trial counsel instructions as to factual matters – where counsel’s understanding was that he was to run the trial in accordance with these factual instructions, subject to his exercise of professional discretion – where during evidence-in-chief counsel for the appellant received an answer from the appellant which was not in accordance with his factual instructions – where trial counsel did not attempt to lead potentially exculpatory evidence on behalf of his client – whether a miscarriage of justice occurred due to trial counsel’s failure to adduce evidence in accordance with instructions

Criminal Code 1995 (Cth), s 11.1(1), s 307.1(1)

HCF v The Queen [2023] HCA 35, cited
R v Birks (1990) 19 NSWLR 677, cited
R v Green [1997] 1 Qd R 584; [1995] QCA 517, cited
R v Miletic [1997] 1 VR 593, cited
R v Paddon [1999] 2 Qd R 387; [1998] QCA 248, cited
R v VN[2023] QCA 184, cited
Zhou v The Queen [2021] NSWCCA 278, cited

COUNSEL:

S C Holt KC for the appellant
S J Farnden KC, with S E Harburg, for the respondent

SOLICITORS:

Grant Lawyers for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

DALTON JA: The appellant was convicted of one count of attempting to import a commercial quantity of a border controlled drug, contrary to ss 307.1(1) and 11.1(1) of the Commonwealth Criminal Code.[1] He appealed against his conviction on six grounds, each of which was said to be independently capable of causing a miscarriage of justice. At the conclusion of the hearing in this Court, counsel for the appellant abandoned three of these grounds. In my view it is only necessary to deal with one of them to conclude that there was a miscarriage of justice and that the appellant is entitled to a retrial.
[1]Schedule to the Criminal Code Act 1995 (Cth).
It is necessary to explain the factual basis of the cases presented at trial by the Crown and the appellant. The appellant was tried with his brother, Nathan Baggaley. It is not necessary to explain the entire Crown case against Nathan Baggaley or Nathan’s case.
Cases…

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 Baggaley

Details

AGLC: R v Baggaley [2023] QCA 249
Case: [2023] QCA 249
Decision Date: 8 December 2023

CaseChat Overview and Summary

The case of R v Baggaley involved the appellant who was convicted of attempting to import a commercial quantity of cocaine. The appellant appealed against his conviction, arguing that the trial resulted in a miscarriage of justice due to the conduct of his trial counsel. The appeal was heard in the relevant appellate court. The appellant submitted that his trial counsel had been provided with specific factual instructions but failed to act in accordance with these instructions during the trial, particularly in not leading evidence that was potentially exculpatory. This failure, according to the appellant, constituted a miscarriage of justice.

The court was required to determine whether the appellant's trial counsel's failure to adhere to the appellant's factual instructions amounted to a miscarriage of justice. The central issue was whether this failure, coupled with other alleged irregularities, was significant enough to warrant a retrial. The court had to assess whether the appellant's right to a fair trial was compromised and if the trial outcome was influenced by the counsel's conduct.

The court found that the trial counsel's failure to act in accordance with the appellant's instructions was a substantial irregularity. The court held that the appellant’s right to a fair trial was indeed compromised, as the evidence that was not led could have had an exculpatory effect. The court concluded that the trial counsel's actions amounted to a miscarriage of justice, warranting the setting aside of the verdict and ordering a retrial. The court allowed the appeal, set aside the verdict, and ordered a retrial.

The final orders were that the appeal was allowed, the verdict was set aside, and a retrial was ordered. This outcome was based on the court's finding that the appellant's trial did not meet the standard of fairness due to the significant irregularities in the conduct of his trial counsel.

Orders

Orders of the court

1. Appeal allowed.

2. Verdict set aside.

3. Retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Baggaley [2023] QCA 249
PARTIES:	R v BAGGALEY, Dru Anthony (appellant)
FILE NO/S:	CA No 84 of 2021 SC No 881 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 1 April 2021 (A Lyons SJA)
DELIVERED ON:	8 December 2023
DELIVERED AT:	Brisbane
HEARING DATES:	20 July 2023; 24 November 2023
JUDGES:	Dalton and Flanagan and Boddice JJA
ORDERS:	1. Appeal allowed. 2. Verdict set aside. 3. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of attempting to import a commercial quantity of a border controlled drug, namely cocaine – where the appellant had given his trial counsel instructions as to factual matters – where counsel’s understanding was that he was to run the trial in accordance with these factual instructions, subject to his exercise of professional discretion – where during evidence-in-chief counsel for the appellant received an answer from the appellant which was not in accordance with his factual instructions – where trial counsel did not attempt to lead potentially exculpatory evidence on behalf of his client – whether a miscarriage of justice occurred due to trial counsel’s failure to adduce evidence in accordance with instructions Criminal Code 1995 (Cth), s 11.1(1), s 307.1(1) HCF v The Queen [2023] HCA 35, cited R v Birks (1990) 19 NSWLR 677, cited R v Green [1997] 1 Qd R 584; [1995] QCA 517, cited R v Miletic [1997] 1 VR 593, cited R v Paddon [1999] 2 Qd R 387; [1998] QCA 248, cited R v VN[2023] QCA 184, cited Zhou v The Queen [2021] NSWCCA 278, cited
COUNSEL:	S C Holt KC for the appellant S J Farnden KC, with S E Harburg, for the respondent
SOLICITORS:	Grant Lawyers for the appellant Director of Public Prosecutions (Commonwealth) for the respondent