R v Caric - [2009] QCA 319

SUPREME COURT OF QUEENSLAND

CITATION:

R v Caric [2009] QCA 319

PARTIES:

R
v
CARIC, Marijana
(appellant)

FILE NO/S:

CA No 278 of 2008
SC No 876 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2009

JUDGES:

Keane, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where appellant was convicted of trafficking, supplying and possessing heroin – where appellant alleged that counsel failed on multiple bases to adequately present her case to the jury and also to advance arguments which may have resulted in her acquittal – whether the failures of counsel resulted in a miscarriage of justice

Evidence Act 1977 (Qld), s 17, s 101

R v G [1997] 1 Qd R 584; [1995] QCA 517, applied
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied

COUNSEL:

A M Hoare for the appellant
R G Martin SC, with B J Power, for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading in draft the reasons of Chesterman JA. I agree with those reasons and with the order proposed by his Honour.

MUIR JA: I agree with the reasons of Chesterman JA and with the order he proposes.

CHESTERMAN JA: On 26 August 2008, after a four day trial, the appellant was convicted of one count of trafficking heroin, eight counts of supplying heroin and one count of possessing heroin. The counts of trafficking and supplying were alleged to have occurred between 30 November 2005 and 3 August 2006. On 16 October 2008 the appellant was sentenced to six years’ imprisonment on the trafficking count, three years for each of the supply counts and 12 months’ imprisonment for the count of possessing heroin. All terms were to be served concurrently. A recommendation was made that the appellant be eligible for parole after serving 20 months.

The appellant has appealed against her convictions for trafficking and supplying heroin, though not for possessing it. An application for leave to appeal against sentence was abandoned.

She appeals on the ground that her convictions constitute a miscarriage of justice occasioned by her inadequate representation at trial. In particular she complains that her counsel failed signally to present her case to the jury, and failed to advance arguments which would have increased her chance of acquittal.

The prosecution case comprised:

(a) Evidence from a number of police officers who secretly observed the appellant on two days in August 2006;

(b) The evidence of one Giorgatzis who testified to buying heroin from the appellant on a number of occasions; and

(c) A record of interview given by the appellant in…

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 Caric

Details

AGLC: R v Caric [2009] QCA 319
Case: [2009] QCA 319
Decision Date: 23 October 2009

CaseChat Overview and Summary

The appellant was convicted of drug trafficking, supplying and possessing heroin and sought to appeal the decision on the basis of alleged missteps by her counsel. The appellant alleged that counsel failed to adequately present her case to the jury and also failed to advance arguments which may have resulted in her acquittal. The appellant submitted that the failure of counsel amounted to a miscarriage of justice. The court was required to determine whether the appellant's claims of ineffective assistance of counsel were substantiated and whether they amounted to a miscarriage of justice warranting a new trial. The court considered the standard of proof required to establish ineffective assistance of counsel and whether the alleged failures were significant enough to result in a miscarriage of justice.

The court reviewed the appellant's arguments regarding the alleged failures of her counsel and considered whether the claims were substantiated. The court found that the appellant had not demonstrated that her counsel's performance was deficient in any significant way, and that the arguments advanced by the appellant did not meet the high threshold required to establish ineffective assistance of counsel. The court held that the appellant's claims did not amount to a miscarriage of justice, and that there were no grounds to order a new trial. The court dismissed the appeal.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Caric [2009] QCA 319
PARTIES:	R v CARIC, Marijana (appellant)
FILE NO/S:	CA No 278 of 2008 SC No 876 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 October 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2009
JUDGES:	Keane, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – WHAT CONSTITUTES – where appellant was convicted of trafficking, supplying and possessing heroin – where appellant alleged that counsel failed on multiple bases to adequately present her case to the jury and also to advance arguments which may have resulted in her acquittal – whether the failures of counsel resulted in a miscarriage of justice Evidence Act 1977 (Qld), s 17, s 101 R v G [1997] 1 Qd R 584; [1995] QCA 517, applied TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied
COUNSEL:	A M Hoare for the appellant R G Martin SC, with B J Power, for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent