R v Ellis - [2002] QCA 402

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ellis [2002] QCA 402

PARTIES:

R
v
ELLIS, Frederick John
(appellant/applicant)

FILE NO/S:

CA No 126 of 2002
SC No 195 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2002

JUDGES:

Davies and Williams JJA and Jones J
Judgment of the Court

ORDER:

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

CATCHWORDS:

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERAL PRINCIPLES - where the applicant was convicted of supplying dangerous drugs and of carrying on the business of unlawful trafficking in dangerous drugs - where the applicant was sentenced to 13 years six months imprisonment with a declaration that he had been convicted of a serious violent offence - whether the allegation that the applicant had committed a serious violent offence should have been contained in the indictment

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - QUEENSLAND - whether an allegation that an accused has committed a serious violent offence should be contained in the indictment

Acts Interpretation Act 1954 (Qld), s 20C
Criminal Code (Qld), s 11
Penalties and Sentences Act 1992 (Qld), Part 9A

R v Mason and Saunders [1998] 2 QdR 186, considered

COUNSEL:

P J Feeney for appellant/applicant
P F Rutledge for respondent

SOLICITORS:

Bernard Bradley & Associates for appellant/applicant
Director of Public Prosecutions (Queensland) for respondent

THE COURT: The applicant was convicted after a trial of carrying on the business of unlawful trafficking in the dangerous drugs heroin and methylamphetamine between 8 April 1997 and 28 November 1997 and of 13 counts of supplying those drugs on various dates during that period. It is significant, in view of the nature of the application to which we shall shortly refer that seven of these counts of supply occurred after 1 July 1997. They were one of supplying methylamphetamine on 1 August 1997, one of supplying heroin on 21 August 1997, one of supplying methylamphetamine on 22 September 1997, one of supplying heroin on 26 September 1997, one of supplying heroin on 1 October 1997, one of supplying heroin on 22 October 1997 and one of supplying heroin on 26 October 1997. These occasions of supplying these drugs, together with the five occasions of supply before 1 July 1997, commencing on 14 April 1997, sufficiently showed that the applicant was carrying on the business of trafficking in both drugs over the whole of the period from 14 April 1997 to 26 October 1997.

In fact the learned sentencing judge accepted the slightly longer period than this concluding that the only reason why the applicant desisted from his continuing in this business was that he was arrested on 28 November 1997. The learned sentencing judge also concluded, and the evidence showed that the…

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 Ellis

Details

AGLC: R v Ellis [2002] QCA 402
Case: [2002] QCA 402
Decision Date: 4 October 2002

CaseChat Overview and Summary

The case of R v Ellis involved an appeal against a conviction for supplying dangerous drugs and carrying on the business of unlawful trafficking in dangerous drugs, as well as a challenge to the sentence imposed. The appellant was sentenced to 13 years and 6 months imprisonment with a declaration that he had been convicted of a serious violent offence. The central issue was whether the allegation that the appellant had committed a serious violent offence should have been contained in the indictment, given the statutory requirements in Queensland.

The court examined whether the inclusion of the serious violent offence allegation in the indictment was mandatory under Queensland law, particularly in light of the statutory provisions in the Criminal Code and the Penalties and Sentences Act. The court considered the relevant legislative provisions and previous case law, notably R v Mason and Saunders, to determine if the failure to include such an allegation in the indictment was a fundamental error that could lead to the conviction being quashed.

The court concluded that the omission of the serious violent offence allegation from the indictment did not constitute a fundamental error that would invalidate the conviction. The court found that while the legislation required certain allegations to be included in the indictment, the absence of the specific allegation in this case did not prejudice the appellant’s right to a fair trial. Additionally, the court held that the sentence imposed was not so excessive as to warrant an appeal. Consequently, the appeal against conviction was dismissed and the application for leave to appeal against the sentence was refused.

The final orders were that the appeal against conviction was dismissed and the application for leave to appeal against the sentence was refused. This decision underscores the importance of compliance with statutory requirements in criminal proceedings but also highlights the court’s discretion in determining the impact of procedural errors on the validity of a conviction and the severity of a sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

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 Ellis [2002] QCA 402
PARTIES:	R v ELLIS, Frederick John (appellant/applicant)
FILE NO/S:	CA No 126 of 2002 SC No 195 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2002
JUDGES:	Davies and Williams JJA and Jones J Judgment of the Court
ORDER:	1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - GENERAL PRINCIPLES - where the applicant was convicted of supplying dangerous drugs and of carrying on the business of unlawful trafficking in dangerous drugs - where the applicant was sentenced to 13 years six months imprisonment with a declaration that he had been convicted of a serious violent offence - whether the allegation that the applicant had committed a serious violent offence should have been contained in the indictment CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - QUEENSLAND - whether an allegation that an accused has committed a serious violent offence should be contained in the indictment Acts Interpretation Act 1954 (Qld), s 20C Criminal Code (Qld), s 11 Penalties and Sentences Act 1992 (Qld), Part 9A R v Mason and Saunders [1998] 2 QdR 186, considered
COUNSEL:	P J Feeney for appellant/applicant P F Rutledge for respondent
SOLICITORS:	Bernard Bradley & Associates for appellant/applicant Director of Public Prosecutions (Queensland) for respondent