R v Chan - [2000] QCA 347

SUPREME COURT OF QUEENSLAND

CITATION: R v Chan [2000] QCA 347

PARTIES: R
v
CHAN, Robert Wing Fong
(applicant/appellant)

FILE NO/S: CA No 96 of 2000
DC No 257 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 25 August 2000

DELIVERED AT: Brisbane

HEARING DATE: 19 June 2000

JUDGES: Pincus, Davies and Thomas JJA
Separate reasons for judgment of each member of the Court, Pincus JA and Davies JA concurring as to the orders made, Thomas JA dissenting in part

ORDER:
1.Appeal against conviction on count 1 allowed and a conviction of stealing substituted for that of breaking, entering and stealing;

Application for leave to appeal against sentence granted and appeal allowed, replacing the sentences of 3 years imprisonment by concurrent sentences of 18 months imprisonment, imposed cumulatively upon the sentences imposed on the appellant by this Court in 1993.2.2.

CATCHWORDS:
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – STATUTORY PROVISIONS – AIDING, ABETTING, COUNSELLING OR PROCURING – appellant counselled or procured offence of stealing – whether could be said to have counselled or procured offence of breaking, entering and stealing

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – STATUTORY PROVISIONS – CODE PROVISIONS – appellant counselled or procured stealing of nuts by employee of nut factory – whether probable consequence of that counsel that employee would steal by breaking and entering

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – ALTERNATIVE VERDICTS – DIRECTION TO JURY – whether jury should have been directed that, on charge of breaking, entering and stealing, they could convict of stealing simpliciter

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – LARCENY OR STEALING – OTHER MATTERS – whether counsellor or procurer of stealing can be also convicted of receiving

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED – RECEIVING – STOLEN PROPERTY – appellant counselled or procured stealing of nuts by factory employee – nuts delivered to appellant on two occasions – whether possible for person convicted of counselling or procuring stealing also to be convicted of receiving property thus stolen

Accessories and Abettors Act 1861 (UK), s 1
Corrective Services Act 1988, s 187

Criminal Code, s 7, s 9, s 391(6), s 421(2), s 567, s 568(6), s 568(8), s 668F

Criminal Procedure Act 1848 (UK), s 1

Penalties and Sentences Act 1992, s 156A(2)

29 Victoria No 7, s 1, s 2

Castiglione [1993] NSWLR 1, approved

Coggins (1873) 12 Cox CC 517, mentioned

Davis [1989] 1 Qd R 171, distinguished

Froggett [1966] 1 QB 152, discussed

Gilson (1991) 172 CLR 353, considered

Goodspeed (1911) 75 JP 232, mentioned

Hodge (1898) 2 CCC 350, mentioned

Hughes [1860] Bell 242, 169 ER 1245, considered

Johnston [1973] Qd R 303, considered

Justices at Biloela, ex parte Marlow (No 2) [1983] 1 Qd…

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 Chan

Details

AGLC: R v Chan [2000] QCA 347
Case: [2000] QCA 347
Decision Date: 25 August 2000

CaseChat Overview and Summary

In the case of R v Chan, the appellant stood accused of multiple criminal offences, including breaking, entering, and stealing, as well as counselling or procuring the theft of nuts from a nut factory. The appeal before the court addressed the ancillary liability of the appellant in relation to these charges, specifically whether the appellant could be found guilty of counselling or procuring the offence of breaking, entering, and stealing, as well as the offence of stealing simpliciter. Additionally, the court examined whether the jury should have been directed to consider an alternative conviction for stealing simpliciter on the charge of breaking, entering, and stealing. The case also raised questions about whether a person convicted of counselling or procuring a theft could simultaneously be convicted of receiving stolen property.

The central legal issues revolved around the interpretation of statutory provisions concerning aiding, abetting, counselling, or procuring an offence. The court had to determine whether the appellant's actions constituted counselling or procuring the offence of breaking, entering, and stealing, and if it was a probable consequence of the appellant's conduct that the employee would steal by breaking and entering. Furthermore, the court considered whether the jury should have been directed to consider an alternative conviction for stealing simpliciter on the charge of breaking, entering, and stealing. Lastly, the court examined whether a person convicted of counselling or procuring a theft could also be convicted of receiving stolen property.

The court found that the appellant's counsel or procurement of the theft of nuts by the factory employee did not necessarily imply that it was a probable consequence that the employee would steal by breaking and entering. Consequently, the court substituted the conviction on count 1 from breaking, entering, and stealing to stealing simpliciter. The court also held that the jury should have been directed to consider an alternative conviction for stealing simpliciter. Regarding the ancillary liability, the court concluded that a person convicted of counselling or procuring a theft could also be convicted of receiving stolen property. The appeal against the sentence was allowed, and the sentences were reduced from three years to 18 months imprisonment, imposed cumulatively upon the sentences imposed on the appellant by this Court in 1993.

The final orders of the court were to allow the appeal against the conviction on count 1, substituting a conviction of stealing for that of breaking, entering, and stealing. The court also granted the application for leave to appeal against the sentence, allowing the appeal and replacing the sentences of three years imprisonment with concurrent sentences of 18 months imprisonment, imposed cumulatively upon the sentences imposed on the appellant by this Court in 1993.

Orders

Orders of the court

1.Appeal against conviction on count 1 allowed and a conviction of stealing substituted for that of breaking, entering and stealing;

Application for leave to appeal against sentence granted and appeal allowed, replacing the sentences of 3 years imprisonment by concurrent sentences of 18 months imprisonment, imposed cumulatively upon the sentences imposed on the appellant by this Court in 1993.2.2.

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 Chan [2000] QCA 347
PARTIES:	R v CHAN, Robert Wing Fong (applicant/appellant)
FILE NO/S:	CA No 96 of 2000 DC No 257 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	25 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	19 June 2000
JUDGES:	Pincus, Davies and Thomas JJA Separate reasons for judgment of each member of the Court, Pincus JA and Davies JA concurring as to the orders made, Thomas JA dissenting in part
ORDER:	1.Appeal against conviction on count 1 allowed and a conviction of stealing substituted for that of breaking, entering and stealing; Application for leave to appeal against sentence granted and appeal allowed, replacing the sentences of 3 years imprisonment by concurrent sentences of 18 months imprisonment, imposed cumulatively upon the sentences imposed on the appellant by this Court in 1993.2.2.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – STATUTORY PROVISIONS – AIDING, ABETTING, COUNSELLING OR PROCURING – appellant counselled or procured offence of stealing – whether could be said to have counselled or procured offence of breaking, entering and stealing CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – COMPLICITY – STATUTORY PROVISIONS – CODE PROVISIONS – appellant counselled or procured stealing of nuts by employee of nut factory – whether probable consequence of that counsel that employee would steal by breaking and entering CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – ALTERNATIVE VERDICTS – DIRECTION TO JURY – whether jury should have been directed that, on charge of breaking, entering and stealing, they could convict of stealing simpliciter CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – LARCENY OR STEALING – OTHER MATTERS – whether counsellor or procurer of stealing can be also convicted of receiving CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED – RECEIVING – STOLEN PROPERTY – appellant counselled or procured stealing of nuts by factory employee – nuts delivered to appellant on two occasions – whether possible for person convicted of counselling or procuring stealing also to be convicted of receiving property thus stolen Accessories and Abettors Act 1861 (UK), s 1 Corrective Services Act 1988, s 187 Criminal Code, s 7, s 9, s 391(6), s 421(2), s 567, s 568(6), s 568(8), s 668F Criminal Procedure Act 1848 (UK), s 1 Penalties and Sentences Act 1992, s 156A(2) 29 Victoria No 7, s 1, s 2 Castiglione [1993] NSWLR 1, approved Coggins (1873) 12 Cox CC 517, mentioned Davis [1989] 1 Qd R 171, distinguished Froggett [1966] 1 QB 152, discussed Gilson (1991) 172 CLR 353, considered Goodspeed (1911) 75 JP 232, mentioned Hodge (1898) 2 CCC 350, mentioned Hughes [1860] Bell 242, 169 ER 1245, considered Johnston [1973] Qd R 303, considered Justices at Biloela, ex parte Marlow (No 2) [1983] 1 Qd…