R v Byast - [1997] QCA 276

IN THE COURT OF APPEAL

[1997] QCA 276

SUPREME COURT OF QUEENSLAND

C.A. No. 273 of 1997

Brisbane

[R v Byast]

T H E Q U E E N

MARY HELEN BYAST

(Applicant)
Davies JA Pincus JA de Jersey J

Judgment delivered 5 September 1997

Judgment of the Court

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL AGAINST

CONVICTION AND SENTENCE REFUSED.

CATCHWORDS:	Conspiracy to import cannabis - whether co-accused properly convicted together - “husband and wife” exception - referable only to duly solemnized marriages - overt act - sentence not manifestly excessive.
Counsel:	The applicant appeared on her own behalf Mr G.C. Davey for the respondent
Solicitors:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing date:	25 August 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 September 1997

The applicant seeks an extension of time within which to appeal against conviction and sentence. She was convicted in the District Court at Cairns on 4 June 1997, after a trial, of the Commonwealth offence of conspiracy to import not less than the trafficable quantity of cannabis, contrary to the Customs Act. She was sentenced to two years imprisonment, on the basis that she be released after nine months upon entering into a recognisance to be of good behaviour and keep the peace for the balance of one year three months.

She filed her application for leave to appeal on 3 July 1997. She had apparently signed it on 24 June, but there was delay in its despatch to the court. She offers some explanation for that delay. Whatever be the merit of that explanation, we prefer to pass at once to a consideration of the grounds upon which she would seek to rely for her appeal.

The charge arose from telephone conversations, intercepted by the Australian Federal Police, between the applicant, then at Daintree, and David Nicholas Byast while he was in Papua New Guinea. Their conversations supported a conclusion that they had agreed to import the cannabis into Australia. Those conversations occurred between 22 March and 17 April 1996. In fact on 16 April 1996, on re-entering Australia, Mr Byast was found in possession of 300 grams of cannabis, described in a subsequent telephone conversation between the two accused persons as “token”.

The applicant would first seek to complain that she could not have been found guilty of conspiracy, together with Mr Byast, because he was her husband. We return to the issue whether the applicant correctly described her co-offender as her husband for purposes of the rule to which we now turn.

It is true that a husband and wife cannot at common law be found guilty of conspiracy together, because they are considered as the one person, possessed of the one will. See Mawji v R [1957] AC 126, where the Privy Council affirmed the principle stated in Archbold’s Criminal Pleading, Evidence and Practice, 33rd ed., p.22: “A husband and wife ...…

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 Byast

Details

AGLC: R v Byast [1997] QCA 276
Case: [1997] QCA 276
Decision Date: 5/09/1997

CaseChat Overview and Summary

The appellant, Byast, was convicted of conspiracy to import cannabis and appealed against his conviction and sentence. The appeal focused on several issues, including whether the trial judge erred in allowing his co-accused to be convicted together, the interpretation of the "husband and wife" exception in conspiracy law, the sufficiency of the evidence regarding an overt act, and the appropriateness of the sentence imposed. The court addressed these issues in turn.

The court first considered whether the trial judge had erred in allowing the co-accused to be convicted together. It found that there was no error, as the evidence supported a joint criminal enterprise. Regarding the "husband and wife" exception, the court held that it only applied to marriages that were legally solemnized, and not to de facto relationships. This exception did not apply in this case, as the relationship between the appellant and his co-accused did not meet the legal criteria. The court also examined the evidence for an overt act and found it sufficient to support the conspiracy charge. Lastly, the court assessed the sentence and concluded that it was not manifestly excessive, taking into account all relevant factors.

The appeal was ultimately dismissed, and the convictions and sentence were upheld. The court found no basis to interfere with the trial judge's decision on the co-accused's convictions, the interpretation of the "husband and wife" exception, the sufficiency of the evidence for an overt act, or the sentence imposed. The appellant's conviction and sentence remained in place, as the court found no errors in the trial process that would warrant a different outcome.

Orders