R v Dumenil - [2024] QCA 118

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dumenil [2024] QCA 118

PARTIES:

R
v
DUMENIL, Mark Anthony
(appellant)

FILE NO/S:

CA No 208 of 2022
SC No 798 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 26 August 2022 (Jackson J)

DELIVERED ON:

Date of Orders: 15 May 2024
Date of Publication of Reasons: 21 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2024

JUDGES:

Mullins P and Boddice JA and Callaghan J

ORDERS:

Date of Orders: 15 May 2024

1.   Appeal allowed.

2.   Conviction on Count 2 set aside.

3.   New trial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of attempting to possess a commercial quality of unlawfully imported border controlled drugs – where the appellant had a co-accused – where there was evidence admissible against the co-accused but not the appellant – where there had been an application to exclude that evidence – where that application had been rejected on the basis a jury direction would be required – where jury direction not given – whether this amounted to a failure to observe the requirements of the criminal process in a fundamental respect

Criminal Code (Qld), s 668E(1A)

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited

COUNSEL:

J Lodziak for the appellant
C M O’Connor and J J Underwood for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

THE COURT: The appellant and his co-accused, K, were charged with one count of importing a commercial quantity of border controlled drugs (cocaine – count 1) and one count of attempting to possess a commercial quantity of unlawfully imported border controlled drugs (cocaine – count 2).
K pleaded not guilty to count 1, but guilty to count 2. The appellant pleaded not guilty to both counts. A jury was unable to reach a verdict (against either accused) on count 1, but the appellant was convicted on count 2 (attempting to possess) and appeals against that conviction.
On 15 May 2024 the Court, for the reasons that follow, allowed the appellant’s appeal, set aside the conviction on count 2, and ordered a new trial.
There is one ground of appeal, which avers a miscarriage of justice occurred because the learned trial Judge failed to direct the jury that the contents of a police interview with K were not admissible against the appellant and that a miscarriage of justice occurred as a result.
The respondent accepted that the failure to direct the jury as to the inadmissibility of the police interview constitutes a miscarriage of justice, but submitted that it did not rise to the level of a substantial miscarriage of justice. The respondent therefore submitted…

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 Dumenil

Details

AGLC: R v Dumenil [2024] QCA 118
Case: [2024] QCA 118
Decision Date: 21 June 2024

CaseChat Overview and Summary

In the case of R v Dumenil, the appellant was convicted of attempting to possess a commercial quantity of unlawfully imported border controlled drugs. The appellant's co-accused, K, was also implicated in the crime. The primary issue before the court was whether the failure to give a jury direction, despite an application to exclude evidence admissible against the co-accused but not the appellant, constituted a fundamental failure to observe the requirements of the criminal process.

The court considered whether the failure to give a jury direction regarding the inadmissible evidence against the co-accused, after an application to exclude it had been rejected on the basis that a direction would be required, amounted to a miscarriage of justice. The court held that this failure did indeed constitute a fundamental irregularity in the criminal process. The appellant was entitled to have the inadmissible evidence excluded entirely, rather than being subject to a direction that would only mitigate its prejudicial effect. The court found that this irregularity had a substantial and significant influence on the jury's decision-making process, leading to a miscarriage of justice.

Accordingly, the court allowed the appeal, set aside the conviction on Count 2, and ordered a new trial. The court emphasised the importance of ensuring that the criminal process is observed in a fundamental respect, particularly in cases where inadmissible evidence is involved. The decision underscores the need for courts to carefully consider the implications of admitting or excluding evidence, and to provide appropriate directions to the jury to prevent any undue prejudice.

Orders

Orders of the court

Date of Orders: 15 May 2024

1. Appeal allowed.

2. Conviction on Count 2 set aside.

3. New trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The following facts were admitted at trial:[1][1]Appeal Record Book, Volume 3, page 888.(a)The appellant was a director of a company that recycled rubber into granules.[2] That company leased a warehouse in Wacol.[3](b)The company organised for a container of rubber granules to be shipped from Cartagena, Colombia to Brisbane, Australia.[4] The authorities, after noticing anomalies in an X-ray scan of the container housing the rubber granules, located 99 blocks of white substance concealed in the roof beams.[5] That white substance was cocaine, which was surreptitiously substituted by the authorities with an inert substance.[6](c)The container was delivered to the Wacol warehouse on 17 January 2018.[7] The following afternoon, the appellant and K removed the rubber granules from the shipping container.[8](d)At 5.04 am on 19 January 2018, the day after the rubber granules had been removed from the container, the appellant and K returned to the warehouse.[9] K brought a grey suitcase into the warehouse with him.[10](e)At 5.21 am, K retrieved a diagram describing the location of where the cocaine had been stored in the shipping container.[11] K then used an angle grinder to cut into the roof of the warehouse. The blocks of inert substance were extracted from the roof beams of the container by K.(f)K and the appellant then went to Bunnings together at 6.48 am, where K bought various items designed to repair the damage to the container caused by the angle grinder.[12] K and the appellant then returned to the warehouse at 7.38 am.[13] Repairs were made to the container.[14](g)The substituted inert substance was placed into a grey suitcase, which K then placed into his car at 8.48 am.[15] The appellant and K then embraced, shook hands, and parted ways.[16](h)The appellant was arrested at 9.05 am, after he exited the premises.[17] The police found the planning diagram in the appellant’s car.[18](i)K proceeded to deliver the suitcase to some other persons, before being arrested at 10.00 am.[19][2]Appeal Record Book, Volume 3, page 888.[3]Appeal Record Book, Volume 3, page 890.[4]Appeal Record Book, Volume 3, page 892.[5]Appeal Record Book, Volume 3, page 893.[6]Appeal Record Book, Volume 3, page 893.[7]Appeal Record Book, Volume 3, page 894.[8]Appeal Record Book, Volume 3, page 897.[9]Appeal Record Book, Volume 3, page 899.[10]Appeal Record Book, Volume 3, page 899.[11]Appeal Record Book, Volume 3, page 900.[12]Appeal Record Book, Volume 3, page 900.[13]Appeal Record Book, Volume 3, page 900.[14]Appeal Record Book, Volume 3, page 900.[15]Appeal Record Book, Volume 3, page 900.[16]Appeal Record Book, Volume 3, page 900.[17]Appeal Record Book, Volume 3, page 901.[18]This was not admitted but was uncontroversial: Appeal Record Book, Volume 1, page 136, line 36.[19]Appeal Record Book, Volume 3, page 902.Other evidence Camera footage revealed that no other person was in the vicinity of the warehouse between 5.04 am and 6.48 am. Further, the appellant was observed exiting the warehouse at 6.04 am, carrying sleeves of plastic, similar in appearance to that which the cocaine and substituted drug were stored in.[20] The appellant was observed exiting and re-entering the warehouse again at 6.28 am. The appellant exited the warehouse again at 6.43 am, wearing gloves on each hand.[20]Appeal Record Book, Volume 2, page 358.

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 Dumenil [2024] QCA 118
PARTIES:	R v DUMENIL, Mark Anthony (appellant)
FILE NO/S:	CA No 208 of 2022 SC No 798 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 26 August 2022 (Jackson J)
DELIVERED ON:	Date of Orders: 15 May 2024 Date of Publication of Reasons: 21 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2024
JUDGES:	Mullins P and Boddice JA and Callaghan J
ORDERS:	Date of Orders: 15 May 2024 1. Appeal allowed. 2. Conviction on Count 2 set aside. 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of one count of attempting to possess a commercial quality of unlawfully imported border controlled drugs – where the appellant had a co-accused – where there was evidence admissible against the co-accused but not the appellant – where there had been an application to exclude that evidence – where that application had been rejected on the basis a jury direction would be required – where jury direction not given – whether this amounted to a failure to observe the requirements of the criminal process in a fundamental respect Criminal Code (Qld), s 668E(1A) HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited
COUNSEL:	J Lodziak for the appellant C M O’Connor and J J Underwood for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Commonwealth) for the respondent