R v Brennan; R v Sipple - [2025] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brennan; R v Sipple [2025] QCA 57

PARTIES:

In CA No 134 of 2024:
R
v
BRENNAN, Jordan Roman
(appellant)

In CA No 135 of 2024:
R
v
SIPPLE, Brendan John
(appellant)

FILE NO/S:

CA No 134 of 2024
CA No 135 of 2024
SC No 1011 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 31 May 2024 (Copley J)

DELIVERED ON:

23 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2025

JUDGES:

Bond and Flanagan JJA and Davis J

ORDERS:

1. Each appellant’s application for leave to adduce fresh evidence is refused.

2. Each appellant’s appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellants sought to exclude at trial certain evidence disclosing prior offending – where the appellants contend the evidence attracted the Pfennig principles – where the evidence was led for a specific and limited use as an admission – whether the learned trial judge made a wrong decision on a question of law by declaring evidence of uncharged offending admissible at the appellants’ trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the learned trial judge directed the jury that acts preparatory to the commission of the offence would not suffice to establish an attempt – where the prosecution case turned on circumstantial evidence – where the jury was satisfied beyond reasonable doubt that either appellant gained access to the relevant container to attempt to extract a substance which contained a commercial quantity of a border controlled drug – whether the evidence of the prosecution is undermined by inconsistencies, discrepancies or other inadequacies – whether the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where fresh evidence emerged after the trial – where the appellants contend that such evidence operates to undermine the credibility of Detective Sergeant Mulder – where Detective Sergeant Mulder was comprehensively cross-examined – whether a miscarriage of justice was occasioned by the failure of the prosecution to disclose information relevant to the appellants’ trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – where the appellants seek leave to adduce fresh evidence – whether, based on the fresh evidence and the evidence at trial, the convictions should be set aside to avoid a miscarriage of justice

Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited
Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21, cited
Harriman v the Queen (1989) 167 CLR 590; [1989] HCA 50, followed
Hoch v The Queen (1988) 165 CLR 292

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.

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Details

Case: [2025] QCA 57
Decision Date: 23 April 2025

CaseChat Overview and Summary

In the case of R v Brennan; R v Sipple, the appellants sought to appeal their convictions and sentences on various grounds, including the improper admission of evidence, the reasonableness of the jury's verdict, and the occurrence of a miscarriage of justice due to fresh evidence. The appeals were heard in the Supreme Court of Queensland. The appellants argued that the trial judge made a wrong decision by admitting evidence of uncharged offending, and that the jury's verdict was unreasonable given the evidence. Additionally, they contended that fresh evidence had emerged post-trial, which undermined the credibility of a key prosecution witness, Detective Sergeant Mulder.

The legal issues before the court encompassed whether the trial judge erred in admitting evidence of uncharged acts, whether the jury's verdict was unreasonable in light of the evidence, and whether the failure to disclose fresh evidence post-trial constituted a miscarriage of justice. The court considered whether the admission of evidence of uncharged acts was justified under the principles outlined in Pfennig, and whether the fresh evidence introduced new factors that could have affected the outcome of the trial. The court also assessed the consistency and reliability of the prosecution's case and the credibility of the evidence presented.

The court found that the trial judge did not err in admitting the Uncharged Acts Evidence, as it was inextricably intertwined with admissions made by the appellants. The court emphasised that this evidence could only be used to prove the prosecution's case against the appellants and not to suggest a propensity for criminal behaviour. The court further determined that the jury's verdict was not unreasonable, given the circumstantial evidence presented. Regarding the fresh evidence, the court ruled that it did not constitute a miscarriage of justice, as the evidence was already known to the appellants or did not materially affect the outcome of the trial.

The final orders of the court were that the appellants' applications for leave to adduce fresh evidence were refused, and their appeals were dismissed. The convictions and sentences imposed by the trial court were upheld.

Orders

Orders of the court

1. Each appellant’s application for leave to adduce fresh evidence is refused.

2. Each appellant’s appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In re-examination, DS Mulder was asked whether he was able, with any certainty, to identify the container which he examined on the evening of 12 June 2020:“I can’t – no, I can’t give a – any certainty about which container it was, other than it – my recollection is from – I can recall in clear detail how we were walking – we’d walked around the container yard. There was a – a Qube employee – this is my best recollection – in front. I was behind him. Winter was behind that. There’s a space in between. We’re spread out somewhat. I can’t recall how far. We weren’t bunched up. And when Winter made the comment about the glove, I’d seen the glove and I’d been checking those containers at that time, and I was confident that we were talking about the same glove.”[76][76]RB, vol 2, p 389, lines 11 – 18.(iv) The evidence of FA Winter FA Winter attended the Qube Logistics empty container yard on 12 June 2020. He arrived at approximately 4.00 pm. He took up with onsite staff and together with DS Mulder conducted an inspection of the facility. He was looking for a refrigerated Maersk container that had been accessed or interfered with. There were thousands of containers in the yard, being a mixture of normal containers and refrigerated containers of various sizes. FA Winter and DS Mulder walked through channels where the containers were stored.[77][77]RB, vol 2, p 393, lines 14 – 18. At one point he recalled smelling urine and noticed a glove on the ground. The channels between the containers were fairly long. It was dark when he saw the glove as he had been there for approximately two hours. He recalled the glove was at the base of a container. He did not take any further action in relation to the glove that night. When asked whether he observed anything about the container near the glove, his evidence was that he and DS Mulder were looking at all the containers along that row and did not notice anything in particular. He had some recollection of saying to DS Mulder that he could smell urine and he mentioned the glove.[78][78]RB, vol 2, p 393, line 18 – p 394, line 5. He returned the following day with others and conducted what he referred to as a “thorough search” of the empty container yard. The focus was specifically on refrigerated containers with the Maersk brand which showed signs of having been interfered with.[79] He observed the glove again on 13 June 2020. By reference to Exhibit 6, photograph 1, he was able to say that the position of the glove shown in this photograph was consistent with what he observed on 12 June 2020.[80] The photographs he took included photographs of muddy boot prints on the shelf of the Container and the number of the Container. Photograph 5 of Exhibit 6 shows the left hand side of the Container on the upper end and the hatch which is bolted to the Container. The photograph shows that bolts are missing. While he noticed this on 13 June 2020, his evidence was that he did not notice this on 12 June 2020.[81][79]RB, vol 2, p 394, lines 25 – 29.[80]RB, vol 2, p 395, lines 1-4.[81]RB, vol 2, p 396, lines 18 – 22.

Decision

Reasons for decision

Ground 2 fails.Ground 1 – Wrong decision on any question of law The challenged evidence appears at paragraph [34] (Category 1 (a)–(d)) of these Reasons and is referred to as the “Uncharged Acts Evidence”. What the Uncharged Acts Evidence may show, depending on one’s assessment of it, is a prior act of importation of cocaine by the appellants. At the s 590AA hearing, the Crown pressed admission of the Uncharged Acts Evidence on this basis:“in the context of a circumstantial case, the timing and content of [the covertly recorded] conversations is relevant to an assessment as to whether there is a rational inference available in the circumstances that the actions of the defendants were done for some other purpose apart from seeking to possess imported cocaine.” The appellants sought the exclusion of the Uncharged Acts Evidence on various bases which can be summarised as:[109](a)as the evidence disclosed prior offending by the appellants, the evidence was only admissible if the prerequisites to admission as laid down in Pfennig were present;(b)alternatively, if the Pfennig principles only applied to propensity evidence (a subset of a broader category of evidence of uncharged acts), then the Uncharged Acts Evidence was in substance propensity evidence and attracted the Pfennig principles;(c)the Uncharged Acts Evidence did not meet the prerequisites specified in Pfennig; and therefore(d)the evidence was inadmissible and ought to have been excluded.[109]RB, vol 2, p 224. Apart from part of the conversation which occurred at 5.40 am on 12 June 2020,[110] the learned trial judge admitted the Uncharged Acts Evidence. In so doing, his Honour said:“[The conversations] … are admissible because not withstanding references to earlier offending, the accused make statements or do not demur to statements made in an accused’s own presence by the other, which are capable of amounting to admissions to committing the offence each is charged with. And these admissions are inextricably intertwined with the references to some earlier behaviour that may have constituted a separate offence.”[111] (emphasis added)[110]See [28] above.[111]Ruling, T1-12. When summing up the case to the jury his Honour referred to the Uncharged Acts Evidence and then directed the jury in these terms:[112]“What they say after they returned to the van about what they had just apparently done is relied on as constituting admissions that each made to the other about what they had just done, and those admissions are just inextricably intertwined or mixed in with references to other events which have no significance to these admissions allegedly made when they returned to the van.You must not use the evidence of conversations about earlier occasions for any other purposes. You certainly must not seek to draw some inference that because they may have been involved in some other undesirable conduct, that either of them is therefore more likely to have committed the offence or the count that he is charged with. It would be quite wrong for you to say, having heard that evidence, that either accused is the sort of man likely to have committed the count he is charged with. If you accept this evidence, if you heard these things that I have said might be able to be heard, it might only be – it can only be used to consider whether it assists the prosecution in the ways I have described to prove the case against each of the accused.” (emphasis added)[112]RB, vol 1, p 125.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Brennan; R v Sipple [2025] QCA 57
PARTIES:	In CA No 134 of 2024: R v BRENNAN, Jordan Roman (appellant) In CA No 135 of 2024: R v SIPPLE, Brendan John (appellant)
FILE NO/S:	CA No 134 of 2024 CA No 135 of 2024 SC No 1011 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 31 May 2024 (Copley J)
DELIVERED ON:	23 April 2025
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2025
JUDGES:	Bond and Flanagan JJA and Davis J
ORDERS:	1. Each appellant’s application for leave to adduce fresh evidence is refused. 2. Each appellant’s appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellants sought to exclude at trial certain evidence disclosing prior offending – where the appellants contend the evidence attracted the Pfennig principles – where the evidence was led for a specific and limited use as an admission – whether the learned trial judge made a wrong decision on a question of law by declaring evidence of uncharged offending admissible at the appellants’ trial CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the learned trial judge directed the jury that acts preparatory to the commission of the offence would not suffice to establish an attempt – where the prosecution case turned on circumstantial evidence – where the jury was satisfied beyond reasonable doubt that either appellant gained access to the relevant container to attempt to extract a substance which contained a commercial quantity of a border controlled drug – whether the evidence of the prosecution is undermined by inconsistencies, discrepancies or other inadequacies – whether the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where fresh evidence emerged after the trial – where the appellants contend that such evidence operates to undermine the credibility of Detective Sergeant Mulder – where Detective Sergeant Mulder was comprehensively cross-examined – whether a miscarriage of justice was occasioned by the failure of the prosecution to disclose information relevant to the appellants’ trial CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – where the appellants seek leave to adduce fresh evidence – whether, based on the fresh evidence and the evidence at trial, the convictions should be set aside to avoid a miscarriage of justice Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21, cited Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21, cited Harriman v the Queen (1989) 167 CLR 590; [1989] HCA 50, followed Hoch v The Queen (1988) 165 CLR 292