R v Falzon - [2009] QCA 393

SUPREME COURT OF QUEENSLAND

CITATION:

R v Falzon [2009] QCA 393

PARTIES:

R
v
FALZON, Michael Paul
(appellant/applicant)

FILE NO/S:

CA No 65 of 2009
CA No 140 of 2009
SC No 889 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2009

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where appellant convicted of one count of trafficking in methylamphetamine and cannabis sativa and two counts of producing methylamphetamine, and acquitted of two further production counts – whether, by alleging trafficking in two dangerous drugs, trafficking count bad for duplicity – whether evidence of, inter alia, intercepted telephone conversation and of forensic accountant properly admitted – whether provision of trial transcript to jury deprived appellant of fair trial – whether trial judge’s definition of trafficking in summing up misleading – whether trial judge’s directions to jury fair

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – whether Crown witnesses’ evidence reliable – whether sufficient evidence to support conviction of trafficking in cannabis – whether verdicts unreasonable

Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited
R v Geary [2003] 1 Qd R 64; [2002] QCA 33, cited
R v Jacobs [1998] 1 Qd R 96; [1997] QCA 114, cited
R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited

COUNSEL:

J Cremin for the appellant/applicant
M J Copley SC for the respondent

SOLICITORS:

Mackenzie Mitchell Solicitors for the appellant/applicant
Director of Public Prosecutions (Qld) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Holmes JA. I agree with those reasons and with the orders proposed by her Honour.

HOLMES JA: The appellant appeals his conviction on one count of trafficking in methylamphetamine and cannabis sativa between 1 July 1997 and 1 October 2003 and two counts of producing methylamphetamine between 1 July 1997 and 16 February 2001. One of the production counts carried a circumstance of aggravation, that the quantity of the drug exceeded two grams. The appellant was acquitted of a further two counts of production of methylamphetamine. Each count on the indictment particularised “Ilbilbie” as the place where the alleged offence occurred. The appeal grounds cover an array of complaints of varying merit concerning procedural matters, admission of evidence, the directions given to the jury and a contention that the verdicts were unreasonable. The appellant has also filed an application for leave to appeal against sentence, but has made it clear that whether he maintains that…

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 Falzon

Details

AGLC: R v Falzon [2009] QCA 393
Case: [2009] QCA 393
Decision Date: 18 December 2009

CaseChat Overview and Summary

The appellant, Falzon, was convicted in the County Court of Victoria of one count of trafficking in methylamphetamine and cannabis sativa, and two counts of producing methylamphetamine. Falzon was acquitted on two further production counts. He appealed against his conviction and sentence, arguing that the trafficking count was bad for duplicity, the evidence was inadmissible, the provision of a trial transcript to the jury deprived him of a fair trial, and the trial judge’s summing up and directions to the jury were misleading. Additionally, Falzon argued that the verdicts were unreasonable or insupportable having regard to the evidence.

The legal issues before the court were whether the trafficking count was bad for duplicity, whether the evidence was properly admitted, whether the provision of the trial transcript to the jury deprived Falzon of a fair trial, whether the trial judge’s summing up and directions to the jury were misleading, and whether the verdicts were unreasonable or insupportable having regard to the evidence. The court found that the trafficking count was not bad for duplicity, the evidence was properly admitted, the provision of the trial transcript to the jury did not deprive Falzon of a fair trial, the trial judge’s summing up and directions to the jury were not misleading, and the verdicts were not unreasonable or insupportable having regard to the evidence.

The court held that the evidence of the intercepted telephone conversation and of the forensic accountant was properly admitted as it was relevant and properly authenticated. The court found that the provision of the trial transcript to the jury did not deprive Falzon of a fair trial as it did not prejudice him or the jury. The court held that the trial judge’s summing up and directions to the jury were fair and did not mislead the jury. The court found that the verdicts were not unreasonable or insupportable having regard to the evidence as there was sufficient evidence to support the conviction of trafficking in cannabis.

The court dismissed the appeal against conviction and the application for leave to appeal against sentence.

Orders

Orders of the court

1. Appeal against conviction dismissed;

2. Application for leave to appeal against sentence dismissed.

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 Falzon [2009] QCA 393
PARTIES:	R v FALZON, Michael Paul (appellant/applicant)
FILE NO/S:	CA No 65 of 2009 CA No 140 of 2009 SC No 889 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	30 October 2009
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed; 2. Application for leave to appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where appellant convicted of one count of trafficking in methylamphetamine and cannabis sativa and two counts of producing methylamphetamine, and acquitted of two further production counts – whether, by alleging trafficking in two dangerous drugs, trafficking count bad for duplicity – whether evidence of, inter alia, intercepted telephone conversation and of forensic accountant properly admitted – whether provision of trial transcript to jury deprived appellant of fair trial – whether trial judge’s definition of trafficking in summing up misleading – whether trial judge’s directions to jury fair CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – whether Crown witnesses’ evidence reliable – whether sufficient evidence to support conviction of trafficking in cannabis – whether verdicts unreasonable Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited R v Geary [2003] 1 Qd R 64; [2002] QCA 33, cited R v Jacobs [1998] 1 Qd R 96; [1997] QCA 114, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, cited
COUNSEL:	J Cremin for the appellant/applicant M J Copley SC for the respondent
SOLICITORS:	Mackenzie Mitchell Solicitors for the appellant/applicant Director of Public Prosecutions (Qld) for the respondent