R v Douglas - [1994] QCA 267

IN THE COURT OF APPEAL [1994] QCA 267

SUPREME COURT OF QUEENSLAND

C.A. No. 110 of 1994

Brisbane
[R. v. Douglas]

BETWEEN

T H E Q U E E N
v.
DAVID ROBIN DOUGLAS

(Appellant)
Fitzgerald P.
McPherson J.A.
Demack J.

Judgment delivered 19/07/94

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. THE APPLICATION FOR LEAVE
TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDSCRIMINAL LAW - DRUGS - Business of trafficking - Admissibility of evidence of gun in appellant's possession - Whether evidence of threats to kill or cripple "sales representative" admissible - Relevance to showing "system of business" of appellant.

CRIMINAL LAW - JURIES - Prosecution witness talked to juror - Whether sufficient to discharge jury under s.621 Criminal Code.
CRIMINAL LAW - SENTENCE - Whether 5 years for trafficking excessive - Prior criminal history - Evidence of sales at Aboriginal reserve - Evidence of sales to minors.

Counsel: T. Carmody for the appellant

P. Rutledge for the respondent

Solicitors:	Legal Aid Office for the appellant
Director of Prosecutions for the respondent
Hearing Date: 17 June 1994 judge not to discharge the jury, it would be necessary for the appellant to show not merely that the decision was wrong but also that it occasioned a miscarriage of justice. There is no basis for arriving at either conclusion. In disposing of the application as he did, his Honour applied the correct test : see R. v. Jackson & Le Gros (C.A. 330 & 331 of 1993); and he was plainly correct in holding that objectively no doubt could be fairly entertained about the impartiality of the juror in question or the jury as a whole arising out of what the witness Gardner had said to her.	REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Nineteenth day of July 1994

This is an appeal by David Robin Douglas against his
conviction at a trial in the Circuit Court at Cairns of one
count of carrying on a business of trafficking in cannabis
sativa during 1991 and 1992, and three counts of supplying that
drug on specific dates within that period. The appellant also
seeks leave to appeal against the sentence of imprisonment for 5
years imposed for the trafficking offence.
The notice of appeal in the record contains some eight
grounds of appeal against conviction, of which all but two were
abandoned before the hearing. Of those two, ground 2 can be
quickly disposed of. It complains of the failure of the trial
judge to discharge the jury on the application of defence
counsel on the fifth day of the trial. At that stage the
prosecution case had closed and addresses were about to begin.
Evidently it had only shortly before been discovered that
earlier a prosecution witness named Gardner, who testified at
the trial, had spoken to a woman who became a juror, having done
so once before the trial began and once after it.
Stated in this way, it might be thought that some gross
infraction of s.621…

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 Douglas

Details

AGLC: R v Douglas [1994] QCA 267
Case: [1994] QCA 267
Decision Date: 19/07/1994

CaseChat Overview and Summary

David Robin Douglas was convicted at the Circuit Court at Cairns of carrying on a business of trafficking in cannabis sativa during 1991 and 1992, and three counts of supplying the drug on specific dates within that period. Douglas appealed against his conviction and sought leave to appeal against the sentence of imprisonment for five years imposed for the trafficking offence. The primary issues before the Court of Appeal were whether the trial judge erred in failing to discharge the jury and in admitting certain evidence, and whether the sentence was excessive.

The Court found that the trial judge correctly decided not to discharge the jury. The prosecution witness, Gardner, had spoken to a juror before and after the trial, but these conversations were innocuous and did not prejudice the juror's impartiality. The judge's decision was consistent with the requirements of section 621 of the Criminal Code. Furthermore, the evidence of a firearm in Douglas' possession was relevant to proving the appellant's system of business, which involved threats to kill or cripple sales representatives, and was properly admitted.

In relation to the sentence, the Court found that it was not excessive. The appellant had a lengthy criminal history, including convictions for handling stolen goods, burglary, theft, unlawful possession of a motor vehicle, possession of dangerous drugs, assault occasioning bodily harm, and assaulting police while armed with an offensive weapon. The trial judge had also found that Douglas made sales at an Aboriginal reserve and sold to minors, including high school children. Given these factors, the Court concluded that the five-year sentence for trafficking was appropriate.

The Court of Appeal dismissed the appeal against conviction and refused leave to appeal against the sentence.

Orders