R v Burling and Gill - [2010] QCA 367

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burling & Gill [2010] QCA 367

PARTIES:

R
v
BURLING, Dawn Andrea
GILL, Karen Leanne
(appellants)

FILE NO/S:

CA No 80 of 2010
CA No 84 of 2010
SC No 354 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2010

JUDGES:

Margaret McMurdo P, Chesterman JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. In each appeal against conviction, the appeal is dismissed.

2. In each application for leave to appeal against sentence, the parties are given leave to make further brief written submissions in light of the prosecutor's submission at sentence and the recent decision of Hili v The Queen; Jones v The Queen [2010] HCA 45. Each applicant's submissions are to be filed and served by 4 pm Friday, 4 February 2011. The respondent's submissions are to be filed and served by 4 pm Friday, 12 February 2011.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – appellants convicted of one count of importing a commercial quantity of MDMA – appellant's de facto husband was the principal prosecution witness – witness changed evidence – originally exculpated one appellant then implicated her in second statement – prosecutor accepted that jury should only act on witness evidence where independently supported – whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that appellants were guilty of importing a commercial quantity of the border-controlled drug – whether verdict unreasonable or insupportable having regard to the evidence

Criminal Code 1899 (Qld), s 668E(1)
Evidence Act 1977 (Qld), s 17, s 101

Hili v The Queen; Jones v The Queen [2010] HCA 45, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
R v Deghani[2009] QCA 362, cited

COUNSEL:

N V Weston for appellant Burling
D R MacKenzie for appellant Gill
C R Rice SC for respondent

SOLICITORS:

Callaghan Lawyers for the appellants
Director of Public Prosecutions (Commonwealth) for the respondent

[1] MARGARET McMURDO P: The appellants, Dawn Andrea Burling and Karen Leanne Gill, were each convicted on 12 March 2010 after an eight day trial in the Supreme Court at Brisbane of one count of importing a commercial quantity of border-controlled drugs, namely, 3,4-methylenedioxymethampetamine (MDMA) between 15 January and 8 February 2007. A co-accused, Robert Charles Simich, was found not guilty of attempting to possess a commercial quantity of a border-controlled drug, namely, 3,4-methylenedioxymethamphetamine which had been unlawfuly imported. Another co-offender, David John Deghani, had earlier pleaded guilty to the charge of which Burling and Gill were convicted. He was sentenced to 10 years 10 months imprisonment with a non-parole period fixed at six years and six months.[1] Burling was…

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 Burling and Gill

Details

AGLC: R v Burling and Gill [2010] QCA 367
Case: [2010] QCA 367
Decision Date: 21 December 2010

CaseChat Overview and Summary

In the High Court of Australia, Burling and Gill, the appellants, brought an appeal against their convictions and sentences for importing a commercial quantity of MDMA. The appellants were convicted following a trial at which the principal prosecution witness, the husband of one of the appellants, gave evidence that was subject to significant changes. Initially, the witness's evidence tended to exculpate one of the appellants, but in a subsequent statement, he implicated both appellants in the importation offence. The trial judge directed the jury that they should only act on the witness's evidence if it was independently supported. The appellants contended that the jury's verdict was unreasonable or insupportable having regard to the evidence, and that the trial judge had failed to properly direct the jury on the requirement for independent corroboration of the witness's evidence.

The High Court examined whether it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty of importing a commercial quantity of the border-controlled drug, based on the whole of the evidence presented. The court considered the trial judge's directions to the jury regarding the requirement for independent corroboration of the witness's evidence and whether those directions were sufficient. The court concluded that the trial judge's directions were adequate and that the jury was properly directed on the requirement for independent corroboration. The court held that it was open to the jury to be satisfied beyond reasonable doubt that the appellants were guilty of the offence, based on the whole of the evidence. The appeal against conviction was dismissed for both appellants.

In relation to the applications for leave to appeal against sentence, the parties were given leave to make further brief written submissions in light of the prosecutor's submission at sentence and the recent decision of Hili v The Queen; Jones v The Queen [2010] HCA 45. The appellants' submissions were to be filed and served by 4 pm Friday, 4 February 2011, and the respondent's submissions were to be filed and served by 4 pm Friday, 12 February 2011.

Orders

Orders of the court

1. In each appeal against conviction, the appeal is dismissed.

2. In each application for leave to appeal against sentence, the parties are given leave to make further brief written submissions in light of the prosecutor's submission at sentence and the recent decision of Hili v The Queen; Jones v The Queen [2010] HCA 45. Each applicant's submissions are to be filed and served by 4 pm Friday, 4 February 2011. The respondent's submissions are to be filed and served by 4 pm Friday, 12 February 2011.

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 Burling & Gill [2010] QCA 367
PARTIES:	R v BURLING, Dawn Andrea GILL, Karen Leanne (appellants)
FILE NO/S:	CA No 80 of 2010 CA No 84 of 2010 SC No 354 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2010
JUDGES:	Margaret McMurdo P, Chesterman JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In each appeal against conviction, the appeal is dismissed. 2. In each application for leave to appeal against sentence, the parties are given leave to make further brief written submissions in light of the prosecutor's submission at sentence and the recent decision of Hili v The Queen; Jones v The Queen [2010] HCA 45. Each applicant's submissions are to be filed and served by 4 pm Friday, 4 February 2011. The respondent's submissions are to be filed and served by 4 pm Friday, 12 February 2011.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – appellants convicted of one count of importing a commercial quantity of MDMA – appellant's de facto husband was the principal prosecution witness – witness changed evidence – originally exculpated one appellant then implicated her in second statement – prosecutor accepted that jury should only act on witness evidence where independently supported – whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that appellants were guilty of importing a commercial quantity of the border-controlled drug – whether verdict unreasonable or insupportable having regard to the evidence Criminal Code 1899 (Qld), s 668E(1) Evidence Act 1977 (Qld), s 17, s 101 Hili v The Queen; Jones v The Queen [2010] HCA 45, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited R v Deghani[2009] QCA 362, cited
COUNSEL:	N V Weston for appellant Burling D R MacKenzie for appellant Gill C R Rice SC for respondent
SOLICITORS:	Callaghan Lawyers for the appellants Director of Public Prosecutions (Commonwealth) for the respondent