R v Bush (No 1) - [2018] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bush (No 1) [2018] QCA 45

PARTIES:

R
v
BUSH, William Myles
(appellant)

FILE NO/S:

CA No 203 of 2014
SC No 100 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 3 March 2014 (Philippides J)

DELIVERED ON:

23 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2017; 27 July 2017

JUDGES:

Sofronoff P and Morrison JA and Douglas J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was intercepted by police and found with steroids and cannabis in his possession – where the appellant’s house was searched and he was found to be in possession of testosterone and nandrolone – where another offender confessed to trafficking in methylamphetamine, ecstasy and cannabis and told police that he was a drug runner for the appellant – where another offender told police that he had bought methylamphetamine and cannabis from the appellant – where the appellant’s case at trial was that he had only dealt in Schedule 2 drugs and that he had not dealt in Schedule 1 drugs – where the appellant’s case at trial was that he was an employee of the other offender who had claimed to be the appellant’s drug runner – where the trial judge took a special verdict from the jury as to whether the appellant had dealt in Schedule 1 drugs or Schedule 2 drugs or both – where the appellant was found guilty of trafficking in Schedule 1 and Schedule 2 drugs including 3,4‑methylenedioxymethamphetamine, methylamphetamine and cannabis but found not guilty of trafficking in cocaine – where the appellant was also found guilty of three other counts of possession – where the appellant now contends that there was a miscarriage of justice due to defence counsel’s advice to plead not guilty to the charge of trafficking rather than to plead guilty at the beginning of the trial to trafficking in cannabis only – where the appellant contends that there was a miscarriage of justice due to defence counsel’s advice to plead guilty at the times at which the appellant did – where the appellant contends that there was a miscarriage of justice due to defence counsel’s failure to cross-examine the two informant offenders adequately – where the appellant contends that there was a miscarriage of justice because defence counsel did not obtain the sentencing submissions of one of the informants that could have been used to undermine that informant’s credit at trial – whether the conduct of defence counsel at trial resulted in an irregularity that was so material that it occasioned a miscarriage of justice

Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited
R v Birks (1990) 19 NSWLR 677, cited
R v Ignjatic (1993)…

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 Bush (No 1)

Details

AGLC: R v Bush (No 1) [2018] QCA 45
Case: [2018] QCA 45
Decision Date: 23 March 2018

CaseChat Overview and Summary

The appellant, Bush, appealed against his conviction and sentence on the grounds that he had been denied a fair trial due to the conduct of his defence counsel. Bush was found in possession of steroids and cannabis by police and later, his house was searched, resulting in the discovery of testosterone and nandrolone. Another offender confessed to trafficking in methylamphetamine, ecstasy, and cannabis and claimed to be Bush’s drug runner, while another offender stated that they had bought methylamphetamine and cannabis from Bush. At trial, Bush argued that he had only dealt in Schedule 2 drugs and had not dealt in Schedule 1 drugs. The jury was asked to determine whether Bush had dealt in Schedule 1 drugs, Schedule 2 drugs, or both. Bush was found guilty of trafficking in Schedule 1 and Schedule 2 drugs and three counts of possession but was found not guilty of trafficking in cocaine.

The court examined whether the conduct of defence counsel amounted to an irregularity that was so material that it resulted in a miscarriage of justice. The appellant argued that there was a miscarriage of justice due to the defence counsel’s advice to plead not guilty to the charge of trafficking rather than to plead guilty at the beginning of the trial to trafficking in cannabis only. The appellant also argued that there was a miscarriage of justice due to the defence counsel’s failure to cross-examine the two informant offenders adequately and because the defence counsel did not obtain the sentencing submissions of one of the informants that could have been used to undermine that informant’s credit at trial. The court found that the conduct of the defence counsel did not result in an irregularity that was so material that it occasioned a miscarriage of justice.

The appeal was dismissed. The court held that there was no miscarriage of justice because the defence counsel’s advice to plead not guilty was reasonable, the cross-examination of the informants was sufficient, and the failure to obtain the sentencing submissions of one of the informants did not prejudice the appellant’s case. The appellant’s appeal against his conviction and sentence was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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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 Bush (No 1) [2018] QCA 45
PARTIES:	R v BUSH, William Myles (appellant)
FILE NO/S:	CA No 203 of 2014 SC No 100 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 3 March 2014 (Philippides J)
DELIVERED ON:	23 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2017; 27 July 2017
JUDGES:	Sofronoff P and Morrison JA and Douglas J
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was intercepted by police and found with steroids and cannabis in his possession – where the appellant’s house was searched and he was found to be in possession of testosterone and nandrolone – where another offender confessed to trafficking in methylamphetamine, ecstasy and cannabis and told police that he was a drug runner for the appellant – where another offender told police that he had bought methylamphetamine and cannabis from the appellant – where the appellant’s case at trial was that he had only dealt in Schedule 2 drugs and that he had not dealt in Schedule 1 drugs – where the appellant’s case at trial was that he was an employee of the other offender who had claimed to be the appellant’s drug runner – where the trial judge took a special verdict from the jury as to whether the appellant had dealt in Schedule 1 drugs or Schedule 2 drugs or both – where the appellant was found guilty of trafficking in Schedule 1 and Schedule 2 drugs including 3,4‑methylenedioxymethamphetamine, methylamphetamine and cannabis but found not guilty of trafficking in cocaine – where the appellant was also found guilty of three other counts of possession – where the appellant now contends that there was a miscarriage of justice due to defence counsel’s advice to plead not guilty to the charge of trafficking rather than to plead guilty at the beginning of the trial to trafficking in cannabis only – where the appellant contends that there was a miscarriage of justice due to defence counsel’s advice to plead guilty at the times at which the appellant did – where the appellant contends that there was a miscarriage of justice due to defence counsel’s failure to cross-examine the two informant offenders adequately – where the appellant contends that there was a miscarriage of justice because defence counsel did not obtain the sentencing submissions of one of the informants that could have been used to undermine that informant’s credit at trial – whether the conduct of defence counsel at trial resulted in an irregularity that was so material that it occasioned a miscarriage of justice Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited R v Birks (1990) 19 NSWLR 677, cited R v Ignjatic (1993)…