R v Driscoll and Anor - [2016] QDC 339

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Driscoll & Anor [2016] QDC 339

PARTIES:

THE QUEEN

v

SCOTT DRISCOLL
(first defendant)

and

EMMA DRISCOLL

(second defendant)

FILE NO/S:

2088/15

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 July 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 and 28 June 2016

JUDGE:

Smith DCJA

ORDER:

1.   Application for further and better particulars is dismissed.

2.   Mr Driscoll’s application to exclude the evidence of the filing of Mrs Driscoll’s affidavit with the QIRC is dismissed.

3.   Mr Driscoll’s application to sever counts from the indictment is dismissed.

4.   I order that Mrs Driscoll be tried separately from Mr Driscoll.

CATCHWORDS:

CRIMINAL LAW- INDICTMENT- Whether an order should be made for further and better particulars- whether a separate trial should be ordered as between counts- whether a separate trial should be ordered as between defendants

Criminal Code 1899 (Q) ss 567, 590AA, 597A, 597B
De Jesus v R (1986) 61 ALJR 1
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
R v Bargenquast & Holmes [2014] QSC 481
R v Cranston [1988] 1 Qd R 159
R v Crawford [1989] 2 Qd R 443
R v Davidson [2000] QCA 39
R v Demirok [1976] VR 244
R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239
R v Middis unreported NSW Supreme Court, 27^th of March 1991
R v Swan [2013] QCA 217
R v Symss [2003] NSWCCA 77
Tripodi v R (1961) 104 CLR 1
Webb v R (1994) 181 CLR 41

COUNSEL:

Ms S. Farnden for the Crown

Ms K. Hillard for the defendant Scott Driscoll

Ms J. Sharpe for the defendant Emma Driscoll

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Russo Lawyers for the defendant Scott Driscoll

Fisher Dore Lawyers for the defendant Emma Driscoll

Introduction

This is an application pursuant to s 590AA of the Criminal Code (Q) 1999 by Mr Driscoll for:

(a) further and better particulars;

(b) severance of the counts on the indictment; and

(c) a separate trial from Mrs Driscoll.

Mrs Driscoll applies for a separate trial from Mr Driscoll pursuant to s590AA of the Criminal Code (Q) 1999.

Counts

The following counts are charged by indictment 2088 of 2015:

· Count 1, that on or about the 26^th day of October 2012 at Redcliffe or elsewhere in the State of Queensland, Scott Driscoll dishonestly caused a detriment, namely a sum of money, to the Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers) and the detriment caused was of a value of more than $30,000.[1]
[1]There is a difficulty with the pleading of the charge because no actual detriment has been pleaded. I wonder whether the more appropriate charge is dishonestly applying the funds (bank credit) to the use of the company with the funds alleged to be subject to a condition or direction.

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 Driscoll and Anor

Details

AGLC: R v Driscoll [2016] QDC 339
Case: [2016] QDC 339
Decision Date: 1 July 2016

CaseChat Overview and Summary

The case of R v Driscoll and Anor was heard in the Supreme Court of Queensland. The defendants, Driscoll and his wife, were charged with multiple offences under the Criminal Code 1899 (Q), including conspiracy to commit a serious indictable offence and related charges. The nature of the dispute centred around the adequacy of the indictment, the disclosure of evidence, and the propriety of a joint or separate trial for the defendants. The legal issues before the court were whether an order should be made for further and better particulars, whether counts should be severed from the indictment, and whether the defendants should be tried separately.

The court considered the defendants' applications for further and better particulars, the admissibility of certain evidence, and the severance of counts from the indictment. The defendants argued that the particulars were insufficient and that the evidence was prejudicial. They also sought a severance of counts and separate trials. The court examined the relevant statutory provisions and precedents, including De Jesus v R and Johnson v Miller, to determine the adequacy of the indictment and the appropriateness of the evidence. The court also considered the principles outlined in Kirk v Industrial Court and R v Bargenquast & Holmes regarding the severance of counts and separate trials.

The court held that the indictment was sufficient and dismissed the application for further and better particulars. It found that the evidence in question was admissible and rejected the application to exclude it. The court also dismissed the application to sever counts from the indictment, noting that there was a common factual basis for the charges. However, the court granted the application to try Mrs Driscoll separately from Mr Driscoll, considering the interests of justice and the potential prejudice that could arise from a joint trial. The reasoning was based on the precedents in R v Middis and R v Symss, which support the principle of separate trials where necessary to ensure a fair trial.

The final orders of the court were that the application for further and better particulars be dismissed, the application to exclude evidence be dismissed, the application to sever counts be dismissed, and that Mrs Driscoll be tried separately from Mr Driscoll.

Orders

Orders of the court

1. Application for further and better particulars is dismissed.

2. Mr Driscoll’s application to exclude the evidence of the filing of Mrs Driscoll’s affidavit with the QIRC is dismissed.

3. Mr Driscoll’s application to sever counts from the indictment is dismissed.

4. I order that Mrs Driscoll be tried separately from Mr Driscoll.

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 Driscoll & Anor [2016] QDC 339
PARTIES:	THE QUEEN v SCOTT DRISCOLL (first defendant) and EMMA DRISCOLL (second defendant)
FILE NO/S:	2088/15
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	1 July 2016
DELIVERED AT:	Brisbane
HEARING DATE:	27 and 28 June 2016
JUDGE:	Smith DCJA
ORDER:	1. Application for further and better particulars is dismissed. 2. Mr Driscoll’s application to exclude the evidence of the filing of Mrs Driscoll’s affidavit with the QIRC is dismissed. 3. Mr Driscoll’s application to sever counts from the indictment is dismissed. 4. I order that Mrs Driscoll be tried separately from Mr Driscoll.
CATCHWORDS:	CRIMINAL LAW- INDICTMENT- Whether an order should be made for further and better particulars- whether a separate trial should be ordered as between counts- whether a separate trial should be ordered as between defendants Criminal Code 1899 (Q) ss 567, 590AA, 597A, 597B De Jesus v R (1986) 61 ALJR 1 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 R v Bargenquast & Holmes [2014] QSC 481 R v Cranston [1988] 1 Qd R 159 R v Crawford [1989] 2 Qd R 443 R v Davidson [2000] QCA 39 R v Demirok [1976] VR 244 R v Hasler; ex parte Attorney-General [1987] 1 Qd R 239 R v Middis unreported NSW Supreme Court, 27^th of March 1991 R v Swan [2013] QCA 217 R v Symss [2003] NSWCCA 77 Tripodi v R (1961) 104 CLR 1 Webb v R (1994) 181 CLR 41
COUNSEL:	Ms S. Farnden for the Crown Ms K. Hillard for the defendant Scott Driscoll Ms J. Sharpe for the defendant Emma Driscoll
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Russo Lawyers for the defendant Scott Driscoll Fisher Dore Lawyers for the defendant Emma Driscoll