R v Cannon - [2004] QCA 440

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cannon [2004] QCA 440

PARTIES:

R
v
CANNON, Charles Edward

(appellant)

FILE NO/S:

CA No 74 of 2004

DC No 62 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

19 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2004

JUDGES:

McPherson and Jerrard JJA and Helman J

Separate reasons for judgment of each member of the Court, McPherson JA and Helman J concurring to the orders made, Jerrard JA dissenting

ORDER:

1.   Appeal against convictions allowed

2.   Convictions set aside

3.   New trial ordered

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – UNSATISFACTORY NATURE OF TRIAL – where witnesses in trial either deceased, incapable of giving evidence, indemnified or hostile – where four Crown witnesses only could establish identity of intruder and all four compelled to give evidence – where accomplice witnesses compelled to give evidence before Australian Crime Commission – witness threatened and admitted wanting to wreak vengeance on appellant – witness gave statement only when found in possession of amphetamines – witness admitted lying to Commission – evidence against appellant not effectively tested – prejudicial evidence affected integrity of result of trial – unsafe conviction

APPEAL AND NEW TRIAL – NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – omissions in directions on evidence of witnesses – no re-directions sought by defence counsel – misdirection as to admissibility of witness statements – directions absent as to witnesses being compelled to give evidence before the Australian Crime Commission – jury unaware that one Crown witness indemnified – failure by counsel and Crown prosecutor to raise that witness indemnified – no direction to jury that witness indemnified – jury given directions as to difficulties with the evidence of one witness but not another – whether jury would make connexion that directions applied to evidence of other witness

Criminal Code 1899 (Qld), s 320A, s 355, s 339, s 340, s 391, s 419
Criminal Law Amendment Act 2000 (Qld), s 50

Evidence Act 1977 (Qld), s 93B

Burns v The Queen (1975) 132 CLR 258
R v Parkinson [1990] 1 Qd R 382

Whitehorn v The Queen (1983) 152 CLR 657

COUNSEL:

M J Byrne QC for the appellant

M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: For the reasons given by Helman J, I agree that the appeal by the appellant against his convictions should be allowed and the convictions set aside. There should be an order for a new trial of the offences of which the appellant was convicted.

JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of Helman J, with which McPherson JA agrees, and while I respectfully agree with much of…

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 Cannon

Details

AGLC: R v Cannon [2004] QCA 440
Case: [2004] QCA 440
Decision Date: 19 November 2004

CaseChat Overview and Summary

The matter of R v Cannon involved an appeal against convictions where the appellant contested the decision made by the lower court. The crux of the dispute centred around whether the trial had been conducted in a manner that would prevent a miscarriage of justice, given the nature and circumstances of the evidence presented. The case was heard in the higher court which was tasked with reviewing the trial's fairness and the admissibility and reliability of the evidence used to secure the convictions.

The legal issues that the court had to resolve included whether the trial was fundamentally flawed due to the unsatisfactory nature of the evidence, the circumstances surrounding the witnesses, and the directions given to the jury. Specifically, the court had to consider whether the evidence was sufficiently tested, the impact of prejudicial evidence, and whether there were any misdirections or omissions in the directions given to the jury regarding the admissibility of witness statements and the status of certain witnesses. The court also had to assess whether the absence of certain directions led to a miscarriage of justice.

In examining the trial, the court found that several Crown witnesses were either deceased, incapable of giving evidence, indemnified, or hostile, with only four witnesses able to establish the identity of the intruder. These witnesses were compelled to give evidence, including one who had threatened the appellant and admitted wanting to wreak vengeance, and another who only gave a statement after being found in possession of amphetamines and admitted lying to the Australian Crime Commission. The court concluded that the evidence against the appellant was not effectively tested and that prejudicial evidence had affected the integrity of the trial outcome. Additionally, there were omissions in the directions provided to the jury about the compelled nature of the witnesses' testimonies and the status of one indemnified witness. The court determined that these factors cumulatively contributed to a miscarriage of justice.

Consequently, the court allowed the appeal against the convictions, set aside the convictions, and ordered a new trial. The decision highlighted the importance of ensuring that trials are conducted fairly and that the evidence presented is both reliable and adequately scrutinised to prevent wrongful convictions.

Orders

Orders of the court

1. Appeal against convictions allowed

2. Convictions set aside

3. New trial ordered

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 Cannon [2004] QCA 440
PARTIES:	R v CANNON, Charles Edward (appellant)
FILE NO/S:	CA No 74 of 2004 DC No 62 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	19 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2004
JUDGES:	McPherson and Jerrard JJA and Helman J Separate reasons for judgment of each member of the Court, McPherson JA and Helman J concurring to the orders made, Jerrard JA dissenting
ORDER:	1. Appeal against convictions allowed 2. Convictions set aside 3. New trial ordered
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – UNSATISFACTORY NATURE OF TRIAL – where witnesses in trial either deceased, incapable of giving evidence, indemnified or hostile – where four Crown witnesses only could establish identity of intruder and all four compelled to give evidence – where accomplice witnesses compelled to give evidence before Australian Crime Commission – witness threatened and admitted wanting to wreak vengeance on appellant – witness gave statement only when found in possession of amphetamines – witness admitted lying to Commission – evidence against appellant not effectively tested – prejudicial evidence affected integrity of result of trial – unsafe conviction APPEAL AND NEW TRIAL – NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – omissions in directions on evidence of witnesses – no re-directions sought by defence counsel – misdirection as to admissibility of witness statements – directions absent as to witnesses being compelled to give evidence before the Australian Crime Commission – jury unaware that one Crown witness indemnified – failure by counsel and Crown prosecutor to raise that witness indemnified – no direction to jury that witness indemnified – jury given directions as to difficulties with the evidence of one witness but not another – whether jury would make connexion that directions applied to evidence of other witness Criminal Code 1899 (Qld), s 320A, s 355, s 339, s 340, s 391, s 419 Criminal Law Amendment Act 2000 (Qld), s 50 Evidence Act 1977 (Qld), s 93B Burns v The Queen (1975) 132 CLR 258 R v Parkinson [1990] 1 Qd R 382 Whitehorn v The Queen (1983) 152 CLR 657
COUNSEL:	M J Byrne QC for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent