SUPREME COURT OF QUEENSLAND
CITATION:
R v Geary [2002] QCA 33
PARTIES:
R
v
GEARY, Maxwell Patrick
(applicant / appellant)FILE NO/S:
CA No 241 of 2001
SC No 321 of 1999DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction and Sentence
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
22 February 2002
DELIVERED AT:
Brisbane
HEARING DATE:
8 February 2002
JUDGES:
de Jersey CJ, McPherson and Williams JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.ORDER:
1. With respect to count 4 on the indictment, quash the conviction to the extent quashing the conviction with a circumstance of aggravation, but confirm the conviction for producing the dangerous drug Methylamphetamine;
2. Appeal against convictions otherwise dismissed;
3. Grant leave to appeal against sentence, set aside the sentence imposed with respect to the offences of trafficking in a dangerous drug and production of a dangerous drug, and in lieu thereof order that on the trafficking charge the appellant be sentenced to imprisonment for a period of 10 years, and on the production charge be sentenced to imprisonment for a period of 8 years. The sentences are to be served concurrently. There should be a declaration that a period of pre-sentence custody between 16 December 1999 and 22 December 1999 and between 10 August 2001 and 23 August 2001, a total of 19 days, be regarded as part satisfaction of that penalty.
CATCHWORDS:
CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – CULTIVATION - TRAFFICKING – OTHER MATTERS – whether the learned trial judge erred in accepting the indictment which alleged trafficking in various drugs listed in both Schedule 1 and Schedule 2 of the Drugs Misuse Act 1986 – whether the learned trial judge erred when addressing the jury when taking their verdict that it was sufficient to prove trafficking in any one of the drugs referred to in the charge.
CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CHARACTER OF OFFENCE – DRUG OFFENCES - where charges relate to both Schedule 1 and Schedule 2 drugs - whether need for a special verdict – Sentencing judge may rely on section 132C of the Evidence Act in order to determine which drugs were involved in the trafficking – where a “circumstance of aggravation” had to be charged in the indictment and specifically proven.
CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES – FINAL ADDRESS OF COUNSEL FOR CROWN - GENERALLY – whether a Crown Prosecutor may not in his final address to the jury deal with issues of credit including whether witnesses had possible motives to lie.
CRIMINAL LAW – JURISDICITON PRACTICE AND PROCEDURE – SUMMING UP – whether learned trial judge erred in directing jury regarding the accused’s failure to call evidence when in fact witnesses were non-compellable – whether such a direction caused a miscarriage of justice
CRIMINAL LAW…
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- R v Geary [2002] QCA 33
- Case
- [2002] QCA 33
- Decision Date
CaseChat Overview and Summary
The court addressed these issues by first considering the indictment. It was found that the trial judge did not err in accepting the indictment as it was sufficient to prove trafficking in any one of the drugs listed. The court noted that the nature of the drugs and the quantities involved could be determined by the jury based on the evidence presented. Regarding the trial judge's instructions to the jury, the court held that there was no error as it was appropriate for the jury to consider whether the appellant's failure to call evidence could impact the credibility of the case. The court also reviewed the sentencing, determining that while the sentence was harsh, it was within the appropriate range considering the gravity of the offences.
In summary, the court dismissed the appeal against the convictions but allowed the appeal against the sentence. The conviction for producing the dangerous drug Methylamphetamine was confirmed, but the conviction for trafficking with a circumstance of aggravation was quashed. The sentence was set aside, and in its place, the appellant was sentenced to imprisonment for 10 years for trafficking and 8 years for production, to be served concurrently, with a declaration that a period of pre-sentence custody would count towards the sentence.
Orders
Orders of the court
1. With respect to count 4 on the indictment, quash the conviction to the extent quashing the conviction with a circumstance of aggravation, but confirm the conviction for producing the dangerous drug Methylamphetamine;
2. Appeal against convictions otherwise dismissed;
3. Grant leave to appeal against sentence, set aside the sentence imposed with respect to the offences of trafficking in a dangerous drug and production of a dangerous drug, and in lieu thereof order that on the trafficking charge the appellant be sentenced to imprisonment for a period of 10 years, and on the production charge be sentenced to imprisonment for a period of 8 years. The sentences are to be served concurrently. There should be a declaration that a period of pre-sentence custody between 16 December 1999 and 22 December 1999 and between 10 August 2001 and 23 August 2001, a total of 19 days, be regarded as part satisfaction of that penalty.
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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