R v Cole - [2004] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cole [2004] QCA 109

PARTIES:

R
v
COLE, John Stephen
(appellant/applicant)

FILE NO/S:

CA No 434 of 2002
SC No 114 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2004

JUDGES:

Davies, McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant was one of three people to rob a jewellery store - where appellant was convicted of attempted murder, armed robbery with circumstances of aggravation and unlawful use of a motor vehicle with a circumstance of aggravation - where appellant was sentenced to 19 years and three months imprisonment - whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION - GENERALLY - where jewellery store owners could not identify the persons who robbed their store - where circumstantial evidence was admitted in relation to the store owners' identification of the appellant from photos from a journalist as a man who previously entered the store pretending to be a prison officer - whether the evidence was inherently unreliable and highly prejudicial and should not have been admitted - whether the directions of the learned trial judge were inadequate to properly address the prejudice flowing from its admission

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OTHER CASES - where evidence was provided inadvertently to the jury in circumstances where the prosecution had agreed not to produce the actual document in evidence - whether there was a miscarriage of justice due to the admission of prejudicial evidence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where it was submitted that the learned trial judge failed to give adequate directions regarding lies that may have been told by the appellant - where it was submitted that the learned trial judge failed to properly direct and answer the jury's questions about alibi witnesses who gave evidence for the appellant - whether a failure to give adequate directions resulted in a miscarriage of justice

Criminal Code 1899 (Qld), s 7(1)(b)

Alexander v The Queen (1981) 145 CLR 395, applied
Festa v The Queen (2001) 208 CLR 593, applied

R v Macaulay [1995] QCA 137; CA No 540 of 1994, 11 April 1995, considered

R v Palmer & Hite [2002] QCA 346; CA No 21 of 2002,…

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 Cole

Details

AGLC: R v Cole [2004] QCA 109
Case: [2004] QCA 109
Decision Date: 16 April 2004

CaseChat Overview and Summary

The appellant, one of three individuals involved in the armed robbery of a jewellery store, was convicted of attempted murder, armed robbery with circumstances of aggravation, and unlawful use of a motor vehicle with a circumstance of aggravation. The appellant was sentenced to 19 years and three months imprisonment and appealed against the conviction and sentence. The central issue in the appeal was whether the sentence imposed was manifestly excessive in all the circumstances. Another issue was whether the trial judge erred in admitting circumstantial evidence regarding the appellant's prior visual identification as a man who had previously entered the store pretending to be a prison officer. Additionally, it was argued that there was a miscarriage of justice due to the admission of prejudicial evidence inadvertently provided to the jury.

The court found that the trial judge did not err in admitting the circumstantial evidence of identification, despite the store owners' inability to identify the robbers directly. The court also found that the inadvertent evidence provided to the jury did not result in a miscarriage of justice, as the trial judge had given adequate directions to the jury to disregard the evidence. The court held that the sentence imposed was not manifestly excessive, taking into account the gravity of the offences and the need for general deterrence. The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also dismissed.

In conclusion, the court upheld the appellant's conviction and sentence, finding that the trial judge had not erred in admitting certain evidence or in giving directions to the jury. The appeal against the conviction and sentence was dismissed, and the appellant's conviction and sentence were affirmed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal 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.

CITATION:	R v Cole [2004] QCA 109
PARTIES:	R v COLE, John Stephen (appellant/applicant)
FILE NO/S:	CA No 434 of 2002 SC No 114 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2004
JUDGES:	Davies, McPherson and Williams JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant was one of three people to rob a jewellery store - where appellant was convicted of attempted murder, armed robbery with circumstances of aggravation and unlawful use of a motor vehicle with a circumstance of aggravation - where appellant was sentenced to 19 years and three months imprisonment - whether the sentence was manifestly excessive in all the circumstances CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION - GENERALLY - where jewellery store owners could not identify the persons who robbed their store - where circumstantial evidence was admitted in relation to the store owners' identification of the appellant from photos from a journalist as a man who previously entered the store pretending to be a prison officer - whether the evidence was inherently unreliable and highly prejudicial and should not have been admitted - whether the directions of the learned trial judge were inadequate to properly address the prejudice flowing from its admission EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OTHER CASES - where evidence was provided inadvertently to the jury in circumstances where the prosecution had agreed not to produce the actual document in evidence - whether there was a miscarriage of justice due to the admission of prejudicial evidence CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where it was submitted that the learned trial judge failed to give adequate directions regarding lies that may have been told by the appellant - where it was submitted that the learned trial judge failed to properly direct and answer the jury's questions about alibi witnesses who gave evidence for the appellant - whether a failure to give adequate directions resulted in a miscarriage of justice Criminal Code 1899 (Qld), s 7(1)(b) Alexander v The Queen (1981) 145 CLR 395, applied Festa v The Queen (2001) 208 CLR 593, applied R v Macaulay [1995] QCA 137; CA No 540 of 1994, 11 April 1995, considered R v Palmer & Hite [2002] QCA 346; CA No 21 of 2002,…