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R v Carroll

R v Carroll

Case [2001] QCA 394 21 September 2001

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SUPREME COURT OF QUEENSLAND

CITATION: R v Carroll [2001] QCA 394

PARTIES: R
v
CARROLL, Raymond John
(appellant)

FILE NO/S:
PARTIES:
FILE NO/S:

CA No 315 of 2000
SC No 662 of 1999

R
v
CARROLL, Raymond John
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

CA No 330 of 2000
SC No 662 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against conviction
Sentence Appeal by A-G (Qld)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 21 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 16 August 2001

JUDGES:
McMurdo P, Williams JA, Holmes J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:
1.   Appeal allowed

2.   Conviction set aside and verdict of acquittal entered

3.   Appeal by Attorney-General against sentence       dismissed

CATCHWORDS:
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DOUBLE JEOPARDY - the appellant was convicted in March 1985 of a murder committed in April 1973 and acquitted on appeal in November 1985 – the appellant was convicted in November 2000 of perjury on the ground that he knowingly gave false testimony at the earlier trial to the effect that he did not kill the deceased – where perjury trial was presented to the jury as though it was a re-trial for murder – necessity for there to be new substantial acceptable evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – whether there was 'substantial' evidence which was not led at the earlier murder trial – where alleged confession by appellant to a fellow inmate prior to murder trial of dubious weight – where warning to jury inadequate as to reliability of alleged jailhouse confession – where new opportunity evidence was not significant evidence pointing to the alleged perjury – where new similar fact or propensity evidence was not new, was of dubious weight and had been criticised on the appeal from the conviction for murder – where odontological evidence was derived from a fresh set of expert witnesses but based on the same data analysed by expert witnesses at the murder trial - where evidence against appellant could not be tested due to an effluxion of time and the death of relevant witnesses – principle of double jeopardy breached and crown case amounted to an abuse of process – verdict unsafe and unsatisfactory

Criminal Code (Qld) s 17, s 592A

Bayn (1932) 59 CCC 89, disapproved

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered

DPP v Humphrys [1977] AC 1, considered
Her Majesty’s Advocate v Cairns [1967] JC 37, considered

Longman v The Queen (1989) 168 CLR 79, considered
R v Carroll (1985) 19 A Crim R 410, considered
R v Carroll (2000) 115 A Crim R 164, considered
R v El-Zarw [1994] 2 Qd R 67, applied

R v Gordon ex parte: Attorney-General [1975] Qd R 301, cited

R v Hoch (1988) 165 CLR 292

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 Carroll

Details

AGLC: R v Carroll [2001] QCA 394
Case: [2001] QCA 394
Decision Date: 21 September 2001

CaseChat Overview and Summary

The case of R v Carroll involved the appellant, who was initially convicted in March 1985 for a murder committed in April 1973. However, this conviction was overturned on appeal in November 1985. Subsequently, the appellant was convicted in November 2000 of perjury, based on the assertion that he knowingly provided false testimony at the earlier murder trial. The central issue in this case was whether the principle of double jeopardy was breached when the appellant's perjury trial was presented to the jury as though it was a retrial for murder, without the necessity of new substantial and acceptable evidence.

The legal issues before the court included the admissibility of fresh evidence in a retrial scenario, the reliability of an alleged jailhouse confession, and the weight of similar fact or propensity evidence. The court held that the alleged confession was of dubious weight, and the warning given to the jury regarding its reliability was inadequate. Furthermore, the new opportunity evidence did not significantly point to the alleged perjury, and the similar fact or propensity evidence was neither new nor of significant weight. Additionally, the odontological evidence, although derived from a fresh set of expert witnesses, was based on the same data as the evidence presented at the murder trial. The court found that the evidence against the appellant could not be tested due to the passage of time and the death of relevant witnesses.

In light of these findings, the court concluded that the principle of double jeopardy was breached, and the Crown's case amounted to an abuse of process. The verdict was deemed unsafe and unsatisfactory, leading to the appellant's appeal being allowed. The conviction was set aside, and a verdict of acquittal was entered. The Attorney-General's appeal against the sentence was dismissed.

Orders

Orders of the court

1. Appeal allowed

2. Conviction set aside and verdict of acquittal entered

3. Appeal by Attorney-General against sentence dismissed

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.

Citations

AGLC Citation

R v Carroll [2001] QCA 394

Most Recent Citation

R v Kitayama [2001] QCA 511

Cases citing this decision · 2 of 2 shown

R v Carroll
[2002] HCA 55 Para 2

…ered that the respondent's conviction for perjury be quashed and a verdict of acquittal be entered. [2] Criminal Code (Q), s 123. [3] R v Carroll [2001] QCA 394 at [72].…
R v Kitayama
[2001] QCA 511 Para 1

…ause of the potentially highly prejudicial nature of that evidence, the discrepancy as to the dates should have led to its exclusion (cf. R v Carroll [2001] QCA 394). Alternatively, the evidence, if left before the jury, should have attracted strong warnings from the trial judge “as to the dangers of relying upon…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Brisbane South Regional Health Authority v Taylor
[1996] HCA 25

…of process – verdict unsafe and unsatisfactory Criminal Code (Qld) s 17, s 592A Bayn (1932) 59 CCC 89, disapproved Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered DPP v Humphrys [1977] AC 1, considered Her Majesty’s Advocate v Cairns [1967] JC 37, considered Longman v The Queen (1989) 168 CLR 79, considered R v Carroll (…
Pfennig v the Queen
[1995] HCA 7 Para 1

…material time Grinter and the appellant were married). Muir J ruled that consequent upon the more recent decisions ( Hoch (1988) 165 CLR 292, Pfennig (1995) 182 CLR 461, and O'Keefe [2000] 1 Qd R 564) such propensity evidence was probative and admissible. That can be accepted for present purposes. But, of course, the…
Rogers v The Queen
[1994] HCA 42 Para 1

…In Rogers v The Queen (1994) 181 CLR 251 at 255, Mason CJ observed that the "circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories". Shortly thereafter at 256 the Chief Justice cited with approval a passage from Walton v Gardiner…
Walton v Gardiner
[1993] HCA 77

…] 2 Qd R 1, cited Rogers v The Queen (1994) 181 CLR 251, applied The Queen v Storey (1978) 140 CLR 364, applied Walton v Gardiner (1993) 177 CLR 378, considered Williamson v Trainor [1992] 2 Qd R 572, cited COUNSEL: M J Griffin SC with P J Davis for Carroll M J Byrne QC for the Crown SOLICITORS: Legal Aid Queensland for Ca…
Pollitt v The Queen
[1992] HCA 35

…0] 1 Qd R 564, cited R v Perry (1982) 150 CLR 580, considered R v Pfennig (1995) 182 CLR 461, cited R v Pollitt (1992) 174 CLR 558, considered R v Sutton (1984) 152 CLR 528, considered R v Viers [1983] 2 Qd R 1, cited Rogers v The Queen (1994) 181 CLR 251, applied The Queen v Storey (1978) 140 CLR 364, applied Walton…
Longman v The Queen
[1989] HCA 60 Para 1

…s of a trial may often be impaired by a long delay between the occurrence of events and the trial; reference need only be made to Longman v The Queen (1989) 168 CLR 79 at 91 and R v Johannsen and Chambers (1996) 87 A Crim R 126. Against that background the learned trial judge gave directions to the jury with respect…
Hoch v the Queen
[1988] HCA 50 Para 1

…gh leaving a bruise (at the material time Grinter and the appellant were married). Muir J ruled that consequent upon the more recent decisions ( Hoch (1988) 165 CLR 292, Pfennig (1995) 182 CLR 461, and O'Keefe [2000] 1 Qd R 564) such propensity evidence was probative and admissible. That can be accepted for present p…
Sutton v The Queen
[1984] HCA 5 Para 1

…ch; his mother remained living there for some time after he left; (ii) On the then relevant authorities ( R v Perry (1982) 150 CLR 580 and R v Sutton (1984) 152 CLR 528) the similar fact (propensity) evidence was not sufficiently probative to outweigh its prejudicial effects and ought to have been excluded; (iii) A j…
Perry v The Queen
[1982] HCA 75 Para 1

…ided with his mother at East Ipswich; his mother remained living there for some time after he left; (ii) On the then relevant authorities ( R v Perry (1982) 150 CLR 580 and R v Sutton (1984) 152 CLR 528) the similar fact (propensity) evidence was not sufficiently probative to outweigh its prejudicial effects and ough…
R v Storey
[1978] HCA 39 Para 1

…It is not necessary to analyse further the reasoning of the High Court in Rogers . However, some passages from the judgments in The Queen v Storey (1978) 140 CLR 364 are instructive in the present situation. The first passage is in the judgment of Barwick CJ at 372 where he said:…
[1977] AC 1
[1977] AC 1

…CCC 89, disapproved Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered DPP v Humphrys [1977] AC 1, considered Her Majesty’s Advocate v Cairns [1967] JC 37, considered Longman v The Queen (1989) 168 CLR 79, considered R v Carroll (1985) 19 A Crim R 410, considered R v Carroll (2000…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Carroll [2001] QCA 394
PARTIES:	R v CARROLL, Raymond John (appellant)
FILE NO/S: PARTIES: FILE NO/S:	CA No 315 of 2000 SC No 662 of 1999 R v CARROLL, Raymond John (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) CA No 330 of 2000 SC No 662 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 September 2001
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2001
JUDGES:	McMurdo P, Williams JA, Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. Conviction set aside and verdict of acquittal entered 3. Appeal by Attorney-General against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DOUBLE JEOPARDY - the appellant was convicted in March 1985 of a murder committed in April 1973 and acquitted on appeal in November 1985 – the appellant was convicted in November 2000 of perjury on the ground that he knowingly gave false testimony at the earlier trial to the effect that he did not kill the deceased – where perjury trial was presented to the jury as though it was a re-trial for murder – necessity for there to be new substantial acceptable evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – whether there was 'substantial' evidence which was not led at the earlier murder trial – where alleged confession by appellant to a fellow inmate prior to murder trial of dubious weight – where warning to jury inadequate as to reliability of alleged jailhouse confession – where new opportunity evidence was not significant evidence pointing to the alleged perjury – where new similar fact or propensity evidence was not new, was of dubious weight and had been criticised on the appeal from the conviction for murder – where odontological evidence was derived from a fresh set of expert witnesses but based on the same data analysed by expert witnesses at the murder trial - where evidence against appellant could not be tested due to an effluxion of time and the death of relevant witnesses – principle of double jeopardy breached and crown case amounted to an abuse of process – verdict unsafe and unsatisfactory Criminal Code (Qld) s 17, s 592A Bayn (1932) 59 CCC 89, disapproved Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered DPP v Humphrys [1977] AC 1, considered Her Majesty’s Advocate v Cairns [1967] JC 37, considered Longman v The Queen (1989) 168 CLR 79, considered R v Carroll (1985) 19 A Crim R 410, considered R v Carroll (2000) 115 A Crim R 164, considered R v El-Zarw [1994] 2 Qd R 67, applied R v Gordon ex parte: Attorney-General [1975] Qd R 301, cited R v Hoch (1988) 165 CLR 292