R v Cox

Case [2013] QCA 10 8 February 2013

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Cox; R v Cuffe; R v Morrison [2013] QCA 10

PARTIES:

R
v
COX, Stephen Brian
(appellant/applicant)

R
v
CUFFE, John Reginald
(appellant/applicant)

R
v
MORRISON, Peter James
(applicant)

FILE NO/S:

CA No 108 of 2011
CA No 205 of 2011
CA No 139 of 2011
CA No 176 of 2011
CA No 175 of 2011
SC No 704 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction & Sentence
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 February 2013

DELIVERED AT:

Brisbane

HEARING DATES:

31 July 2012
1 August 2012
2 August 2012
20 November 2012

JUDGES:

Holmes and Gotterson JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Dismiss the appeal against conviction by the appellant, Cox.

2.    Dismiss the appeal against conviction by the appellant, Cuffe.

3.    Refuse the application for leave to appeal against sentence by the applicant, Cox.

4.    Grant the application for leave to appeal against sentence by the applicant, Cuffe. Allow the appeal and vary the sentence by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.

5.    Grant the application for leave to appeal against sentence by the applicant, Morrison. Allow the appeal and vary the sentence by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – NON-DISCLOSURE OF EVIDENCE – APPEAL DISMISSED – where the appellants Cox and Cuffe were charged with and convicted of conspiring to defraud the Commonwealth – where the appellants contended the learned trial judge erred in not allowing an adjournment and discharge of the jury after a large volume of documents were disclosed to the defence during the course of the trial – where Cox contended that late disclosure and non-disclosure of documents prejudiced his defence – where Cox complained of conduct of investigators as leading to loss of evidence – where Cuffe contended that relevant evidence was not produced – where no suggestion at trial that relevant evidence not available – whether the trial judge erred in not allowing an adjournment, or discharging the jury, upon the disclosure of documents to defence during the course of the trial – whether any material evidence not disclosed – whether complaints in relation to missing evidence not raised at trial should now be considered – whether any miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – BIAS, DELAY, CONDUCT OF PROSECUTION, CONDUCT OF COUNSEL – APPEAL DISMISSED – where the appellants Cox and Cuffe were charged with and convicted of conspiring to defraud the Commonwealth – where Cuffe contended that trial judge exhibited bias – where Cuffe contended that there…

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 Cox

Details

AGLC: R v Cox; R v Cuffe; R v Morrison [2013] QCA 10
Case: [2013] QCA 10
Decision Date: 8 February 2013

CaseChat Overview and Summary

The appellants Cox and Cuffe were convicted of conspiring to defraud the Commonwealth. Cox and Cuffe sought to appeal their convictions, arguing that the trial judge should have allowed an adjournment or discharged the jury upon the late disclosure of documents. Cox further argued that non-disclosure of evidence prejudiced his defence and that the conduct of investigators led to the loss of evidence. Cuffe contended that relevant evidence was not produced and that there was undue delay in proceeding to trial. They also argued that the trial judge exhibited bias and that there was no obligation on the Crown to join another individual in the proceedings. Cox also claimed that counsel did not put submissions as he wished. Cuffe argued that the trial judge misdirected the jury and that the conviction was unreasonable.

The court considered whether the trial judge erred in not allowing an adjournment or discharging the jury upon the disclosure of documents. It found that the complaints in relation to missing evidence were not raised at trial and should not be considered now. The court also found that there was no suggestion at trial that relevant evidence was not available. Regarding the allegation of bias, the court found no foundation for the complaint. The court also found that there was no basis for the complaint of counsel's conduct and no obligation on the Crown to join another individual in the proceedings. The court found that the allegation of delay was not raised at trial and should not be entertained. The court found no misdirection in the trial judge's instructions to the jury.

The court also considered whether the convictions were unreasonable or insupportable having regard to the evidence. The court found that it was open to the jury to infer Cox's knowledge of the falsity of claims of access to funds from the evidence. The court found that the convictions were not unreasonable. The court dismissed the appeals against conviction by Cox and Cuffe.

The court also considered whether the sentences imposed were manifestly excessive or inadequate. The court found that the trial judge did not err in not taking into account the delay in prosecution. The court found that the sentences imposed were not manifestly excessive. The court refused Cox's application for leave to appeal against sentence. The court granted Cuffe's and Morrison's applications for leave to appeal against sentence. The court allowed the appeals and varied the sentences by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.

The orders of the court were to dismiss the appeal against conviction by Cox and Cuffe, to refuse the application for leave to appeal against sentence by Cox, and to grant the application for leave to appeal against sentence by Cuffe and Morrison. The court allowed the appeals and varied the sentences by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.

Orders

Orders of the court

1. Dismiss the appeal against conviction by the appellant, Cox.

2. Dismiss the appeal against conviction by the appellant, Cuffe.

3. Refuse the application for leave to appeal against sentence by the applicant, Cox.

4. Grant the application for leave to appeal against sentence by the applicant, Cuffe. Allow the appeal and vary the sentence by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.

5. Grant the application for leave to appeal against sentence by the applicant, Morrison. Allow the appeal and vary the sentence by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.

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 Cox; R v Cuffe; R v Morrison [2013] QCA 10

Most Recent Citation

Dragojlovic v The Queen [2013] VSCA 151

Cases citing this decision · 13 of 13 shown

R v Mehieddine
[2025] NSWDC 326

…R v Blackburn [2023] NSWDC 1 R v Buckman [2016] QCA 176 R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 R v Dunn (No 9) [2014] WASC 61 R v Emile George El Soury [2018] NSWDC 450 R v Host [2015] WASCA 23 R v Martin [2005] NSWCCA 190 R v Price [2008] QCA 330 R v Zoghbi [2022] NSWDC 219 Regina v Van Tung Luu (Court…
R v Rbo
[2024] QCA 214 Para 8

…66; R v Cockerell (2001) 126 A Crim R 444, [10] (followed in R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, [53]). [17] R v Cox [2013] QCA 10, [102].…
R v Bigatton (No 5)
[2024] NSWDC 285 Para 94

…at 519. The impacts of delay are recognised as constituting additional punishment of an offender: R v Katsoulis [2008] VSCA 278 at [13]-[14]; R v Cox [2013] QCA 10 at [101]. The uncertain suspense and its impact on the Offender is illustrated in the report of Ms Ram and the observations of his referees.…
R v Zoghbi
[2022] NSWDC 219 Para 169

…R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 concerned a conspiracy to defraud the Commonwealth by promoting tax minimisation schemes for the 1999 and 2000 tax years. The scheme involved recruiting participating taxpayers who would purportedly enter into loan agreements in which they notionally borrowed thousa…
R v Waite
[2017] QCA 270 Para 13

…tation process has made good progress.” [1]See R v L; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63 and R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 at [100]‑[101]. [2][1996] 2 Qd R 63 at 66.…
R v Melrose
[2016] QCA 202 Para 21

…e threat of prosecution; in a sufficiently obvious case an inference to that effect may be drawn.” [4][2012] QCA 190 at [27]-[32]. [5][2013] QCA 10 at [98]-[103]. [6][2013] QCA 10 at [101]-[102].…
Karam v The Queen
[2015] VSCA 50 Para 1

…194]; R v Nuttall; ex parte Attorney-General (Qld) (2011) 209 A Crim R 538, 556 [79] (Muir JA, with whom Fraser and Chesterman JJA agreed); R v Cox [2013] QCA 10, [75] (Holmes JA, with whom Gotterson JA and Philippides J agreed); Lee v R [2012] NSWCCA 123, [22], [42] (Hoeben JA, with whom Hidden and Beech-Jones…
R v Anthony James Dickson (No 18)
[2015] NSWSC 268 Para 124

…e Crimes Act had a maximum penalty of 20 years imprisonment ( Liles v R (Cth) [2014] NSWCCA 289; R v Dunn (No 9) [2014] WASC 61 (“Dunn”); R v Cox [2013] QCA 10; R v Agius [2012] NSWSC 978; O’Meara v R [2009] NSWCCA 90; Ridley v R [2008] NSWCCA 324; Robertson v R [2007] NSWCCA 270; El-Chaar v R [2007] NSWCCA 16;…
R v Dunn (No 9)
[2014] WASC 61 Para 6

…e a Strachans officer who had pleaded guilty received a six-year maximum sentence with a two-year minimum on appeal; R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 where promoters of tax minimisation schemes with a large number of participants received sentences varying from 9 years and 11 months maximum to 5 ye…
R v de Figueiredo
[2013] QCA 303 Para 1

…three of these cases. The facts of R v Hargraves & Stoten emerge sufficiently from the foregoing account. [1][2010] QCA 328. [2][2011] QCA 350. [3][2013] QCA 10. [4](2010) 269 ALR 674.…
Magnus v R
[2013] VSCA 163 Para 1

…y v The Queen ,[24] R v Cox & Ors [25] and Chapman v R .[26] [21][2007] WASCA 84. [22](2008) 18 VR 644. [23][2011] VSCA 404. [24][2012] VSCA 184. [25][2013] QCA 10. [26][2013] NSWCCA 91 [28]-[29] (Adamson J).…
Dragojlovic v The Queen
[2013] VSCA 151 Para 1

…on JJA, 21 April 1998) 12–13. [154] R v Katsoulas [2008] VSCA 278 [10]–[14] (Redlich JA). [155] R v Cox [2011] QSC 187, [32] (Fryberg J); R v Cox [2013] QCA 10, [101] (Holmes JA).…
Soanes v Commissioner of Police
[2013] QDC 26 Para 1

…nt at the car, after the arrest. [29]As to the potentially mitigatory effects of delay in such circumstances, see: R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 at [100] – [102].…

View all 13 citing cases →

Cases cited in this decision · 12 of 12 shown

Pearce v R
[2014] NZCA 388

…n (2005) 216 ALR 690; [2005] WASCA 74, considered R v Baldock (2010) 269 ALR 674; [2010] WASCA 170, considered R v Hargraves & Stoten [2010] QCA 328, considered R v Hart; ex parte Cth DPP (2006) 159 A Crim R 428; [2006] QCA 39, considered R v Huston; ex parte Cth DPP; R v Fox; ex parte Cth DPP; R v Henke; ex parte Ct…
R v Huston; ex parte; R v Fox; ex parte; R v Henke; ex parte
[2011] QCA 350

…P [2011] QCA 350, considered R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered R v Peterson [2008] QCA 70, considered R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123, cited R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, discussed Ridley v R (2008) 192 A Crim R 139; [2008] NSWC…
DPP (Cth) v Gregory
[2011] VSCA 145

…; [2011] VSCA 145, considered Pearce v The Queen (2005) 216 ALR 690; [2005] WASCA 74, considered R v Baldock (2010) 269 ALR 674; [2010] WASCA 170, considered R v Hargraves & Stoten [2010] QCA 328, considered R v Hart; ex parte Cth DPP (2006) 159 A Crim R 428; [2006] QCA 39, considered R v Huston; ex parte Cth DPP;…
R v Hargraves & Stoten
[2010] QCA 328 Para 1

…used a position of trust. A sentence of five years imprisonment with a non-parole period of two years and six months was substituted in each case. [4][2010] QCA 328.…
R v Baldock
[2010] WASCA 170

…; [2010] WASCA 170, considered R v Hargraves & Stoten [2010] QCA 328, considered R v Hart; ex parte Cth DPP (2006) 159 A Crim R 428; [2006] QCA 39, considered R v Huston; ex parte Cth DPP; R v Fox; ex parte Cth DPP; R v Henke; ex parte Cth DPP [2011] QCA 350, considered R v L; ex parte Attorney-General [1996] 2 Qd…
Ridley v R
[2008] NSWCCA 324

…; [2008] NSWCCA 324, considered COUNSEL: The appellant/applicant Cox appeared on his own behalf The appellant/applicant Cuffe appeared on his own behalf on his conviction appeal K Prskalo for the appellant/applicant Cuffe on his sentence application J J Allen for the applicant Morrison J R Hunter SC, with M J Woodfo…
R v Peterson
[2008] QCA 70 Para 1

…r leave to appeal against sentence, concluding that the sentence imposed was not outside the range established by previous decisions of the Court. [7][2008] QCA 70.…
R v Ronen
[2006] NSWCCA 123

…; [2006] NSWCCA 123, cited R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, discussed Ridley v R (2008) 192 A Crim R 139; [2008] NSWCCA 324, considered COUNSEL: The appellant/applicant Cox appeared on his own behalf The appellant/applicant Cuffe appeared on his own behalf on his conviction appeal K Prskalo for the…
R v Hart; ex parte
[2006] QCA 39

…; [2006] QCA 39, considered R v Huston; ex parte Cth DPP; R v Fox; ex parte Cth DPP; R v Henke; ex parte Cth DPP [2011] QCA 350, considered R v L; ex parte Attorney-General [1996] 2 Qd R 63; [1995] QCA 444, considered R v Peterson [2008] QCA 70, considered R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123, ci…
Pearce v The Queen
[2005] WASCA 74

…d Pearce v The Queen (2005) 216 ALR 690; [2005] WASCA 74, considered R v Baldock (2010) 269 ALR 674; [2010] WASCA 170, considered R v Hargraves & Stoten [2010] QCA 328, considered R v Hart; ex parte Cth DPP (2006) 159 A Crim R 428; [2006] QCA 39, considered R v Huston; ex parte Cth DPP; R v Fox; ex parte Cth DPP; R v Henke;…
R v Walsh
[2002] VSCA 98

…; [2002] VSCA 98, discussed Ridley v R (2008) 192 A Crim R 139; [2008] NSWCCA 324, considered COUNSEL: The appellant/applicant Cox appeared on his own behalf The appellant/applicant Cuffe appeared on his own behalf on his conviction appeal K Prskalo for the appellant/applicant Cuffe on his sentence application J…
R v L; ex parte Attorney-General
[1995] QCA 444

…; [1995] QCA 444, considered R v Peterson [2008] QCA 70, considered R v Ronen (2006) 161 A Crim R 300; [2006] NSWCCA 123, cited R v Walsh (2002) 131 A Crim R 299; [2002] VSCA 98, discussed Ridley v R (2008) 192 A Crim R 139; [2008] NSWCCA 324, considered COUNSEL: The appellant/applicant Cox appeared on his own be…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
19AL 1 mention
Financial Transaction Reports Act 1988 (Cth)
1 mention (from Para 1)

CITATION:	R v Cox; R v Cuffe; R v Morrison [2013] QCA 10
PARTIES:	R v COX, Stephen Brian (appellant/applicant) R v CUFFE, John Reginald (appellant/applicant) R v MORRISON, Peter James (applicant)
FILE NO/S:	CA No 108 of 2011 CA No 205 of 2011 CA No 139 of 2011 CA No 176 of 2011 CA No 175 of 2011 SC No 704 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction & Sentence Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 February 2013
DELIVERED AT:	Brisbane
HEARING DATES:	31 July 2012 1 August 2012 2 August 2012 20 November 2012
JUDGES:	Holmes and Gotterson JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Dismiss the appeal against conviction by the appellant, Cox. 2. Dismiss the appeal against conviction by the appellant, Cuffe. 3. Refuse the application for leave to appeal against sentence by the applicant, Cox. 4. Grant the application for leave to appeal against sentence by the applicant, Cuffe. Allow the appeal and vary the sentence by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment. 5. Grant the application for leave to appeal against sentence by the applicant, Morrison. Allow the appeal and vary the sentence by reducing the head sentence to five years imprisonment and fixing the non-parole period at two and a half years imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – NON-DISCLOSURE OF EVIDENCE – APPEAL DISMISSED – where the appellants Cox and Cuffe were charged with and convicted of conspiring to defraud the Commonwealth – where the appellants contended the learned trial judge erred in not allowing an adjournment and discharge of the jury after a large volume of documents were disclosed to the defence during the course of the trial – where Cox contended that late disclosure and non-disclosure of documents prejudiced his defence – where Cox complained of conduct of investigators as leading to loss of evidence – where Cuffe contended that relevant evidence was not produced – where no suggestion at trial that relevant evidence not available – whether the trial judge erred in not allowing an adjournment, or discharging the jury, upon the disclosure of documents to defence during the course of the trial – whether any material evidence not disclosed – whether complaints in relation to missing evidence not raised at trial should now be considered – whether any miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – BIAS, DELAY, CONDUCT OF PROSECUTION, CONDUCT OF COUNSEL – APPEAL DISMISSED – where the appellants Cox and Cuffe were charged with and convicted of conspiring to defraud the Commonwealth – where Cuffe contended that trial judge exhibited bias – where Cuffe contended that there…