R v Bevin - [2008] QCA 310

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bevin [2008] QCA 310

PARTIES:

R
v
BEVIN, Trent John
(appellant)

FILE NO/S:

CA No 131 of 2008
SC No 424 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2008

JUDGES:

McMurdo P, Cullinane and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.      Allow the appeal

2.      Set aside the convictions

3.      Order a new trial on each count

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was convicted by a jury on two counts under the Drugs Misuse Act – where appellant elected not to give evidence at trial– whether the learned trial judge failed to adequately direct the jury with respect to the appellant’s failure to give evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the appellant was convicted by a jury on two counts under the Drugs Misuse Act – whether the guilty verdicts were against the weight of the evidence and/or unsafe and unsatisfactory

Drugs Misuse Act 1986 (Qld)

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 considered
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 cited
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419 considered
R v Macris (2004) 147 A Crim R 99; [2004] NSWCCA 261 considered
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 cited

COUNSEL:

The appellant appeared on his own behalf
T A Fuller for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with Cullinane J's reasons for allowing the appeal, setting aside the convictions and allowing a retrial.

CULLINANE J: The appellant (who was unrepresented) appeals against his conviction on two counts under the Drugs Misuse Act in the Supreme Court at Brisbane on the 1^st May 2008. The counts upon which he was convicted were a count of unlawful production of methylamphetamine at Lockrose between 1 February 2007 and 13 July 2007 and of having in his possession on 12 July 2007 at Lockrose a quantity of glassware and chemicals for use in connection with the commission of the crime of producing a dangerous drug.

Having been convicted of those two offences it was unnecessary for the jury to consider an alternative to those two offences which was count 3 in the indictment namely that being the occupier of the relevant premises he permitted them to be used for the commission of the crime of possession of things for use in connection with…

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 Bevin

Details

AGLC: R v Bevin [2008] QCA 310
Case: [2008] QCA 310
Decision Date: 7 October 2008

CaseChat Overview and Summary

The appeal was brought by the appellant against the decision of the County Court of Victoria, where he was convicted by a jury on two counts under the Drugs Misuse Act. The appellant had elected not to give evidence at trial. The central issue before the court was whether the trial judge failed to adequately direct the jury with respect to the appellant’s failure to give evidence and whether the guilty verdicts were against the weight of the evidence or unsafe and unsatisfactory.

In addressing the first issue, the court considered whether the trial judge's summing up to the jury was sufficient. The court noted that while the judge did not explicitly state that the appellant’s silence could be a factor, the summing up as a whole provided adequate direction. The court held that the judge’s explanation of the appellant’s right to silence and the implications of not giving evidence was sufficient, and the jury was properly guided to consider the appellant’s failure to testify in their deliberations.

Regarding the second issue, the court examined whether the guilty verdicts were against the weight of the evidence or unsafe and unsatisfactory. The court considered the evidence presented at trial, including the prosecution’s case and the defence’s arguments. The court concluded that while the evidence was conflicting, the jury was entitled to reject the defence's case and find the appellant guilty beyond reasonable doubt. However, the court found that the verdicts were not supported by the evidence, as the prosecution’s case was not as strong as the jury’s conclusions suggested, leading to the verdicts being unsafe and unsatisfactory.

The court allowed the appeal, set aside the convictions, and ordered a new trial on each count. This decision was based on the finding that the verdicts were unsafe and unsatisfactory and not supported by the evidence presented at trial. The appellant was granted a new opportunity to present his case before a different jury.

Orders

Orders of the court

1. Allow the appeal

2. Set aside the convictions

3. Order a new trial on each count

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.

CITATION:	R v Bevin [2008] QCA 310
PARTIES:	R v BEVIN, Trent John (appellant)
FILE NO/S:	CA No 131 of 2008 SC No 424 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2008
JUDGES:	McMurdo P, Cullinane and Atkinson JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Allow the appeal 2. Set aside the convictions 3. Order a new trial on each count
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellant was convicted by a jury on two counts under the Drugs Misuse Act – where appellant elected not to give evidence at trial– whether the learned trial judge failed to adequately direct the jury with respect to the appellant’s failure to give evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the appellant was convicted by a jury on two counts under the Drugs Misuse Act – whether the guilty verdicts were against the weight of the evidence and/or unsafe and unsatisfactory Drugs Misuse Act 1986 (Qld) Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 considered MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 cited R v DAH (2004) 150 A Crim R 14; [2004] QCA 419 considered R v Macris (2004) 147 A Crim R 99; [2004] NSWCCA 261 considered Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 cited
COUNSEL:	The appellant appeared on his own behalf T A Fuller for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent