R v Gilbey - [2010] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gilbey [2010] QCA 135

PARTIES:

R
v
GILBEY, Colin Les
(appellant)

FILE NO/S:

CA No 294 of 2009
SC No 1242 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

4 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2010

JUDGES:

Fraser and White JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of possessing a dangerous drug after a trial by jury – where the appellant obtained an extension of time to appeal against conviction – where the appellant argued that the evidence did not support a conviction – where the appellant relied on the lack of scientific evidence to connect him with the container of drugs – whether there was sufficient evidence to enable the jury to be satisfied that the prosecution had discharged its burden of proving the appellant was guilty of possessing the container of drugs

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – GENERALLY –where the appellant made submissions that claimed his counsel at trial made an admission contrary to his instructions and did not act competently – where these submissions were unsupported by evidence and inconsistent with appellant’s evidence at trial – where the appellant made further submissions that the trial judge did not adequately direct the jury as to the nature of the circumstantial evidence against the appellant – where the trial judge directed the jury as to the nature of circumstantial evidence and there was no deficiency in that direction – where leave to amend notice of appeal to pursue these submissions was opposed by the respondent – whether leave should be granted

R v Gilbey[2010] QCA 4, cited

COUNSEL:

The appellant appeared on his own behalf
T A Fuller for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of Mullins J and the order proposed by her Honour.

WHITE JA: I agree with the reasons of Mullins J and the order proposed by her Honour.

MULLINS J: The appellant was found guilty after trial by jury of one count of possessing a dangerous drug, methylamphetamine, in excess of two grams. The appellant who is self-represented appeals against his conviction on the ground that the evidence did not support a conviction. The appellant relies particularly on the lack of scientific evidence to connect him with the container of the drugs. The appellant had obtained an extension of time within which to lodge his notice of appeal against conviction on this ground: R v Gilbey [2010] QCA 4. During the hearing of 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 Gilbey

Details

AGLC: R v Gilbey [2010] QCA 135
Case: [2010] QCA 135
Decision Date: 4 June 2010

CaseChat Overview and Summary

In the matter of R v Gilbey, the appellant sought to overturn a conviction for possession of a dangerous drug. The case was heard in the court of appeal where the appellant argued that the evidence was insufficient to support the conviction. The appellant's primary contention was the lack of direct evidence linking him to the drugs, and he argued that the circumstantial evidence was not enough to prove his guilt beyond a reasonable doubt. The appeal also challenged the competency of the appellant's trial counsel and the adequacy of the trial judge's instructions to the jury regarding the evaluation of circumstantial evidence.

The court considered whether the evidence was sufficient for a jury to find the appellant guilty beyond a reasonable doubt. It was noted that while direct evidence linking the appellant to the drugs was absent, the circumstantial evidence, when considered as a whole, was sufficient to allow a reasonable jury to conclude that the prosecution had met its burden of proof. The court also reviewed the appellant's claims regarding the conduct of his trial counsel and the trial judge's directions to the jury. It found that the appellant's claims were not supported by evidence and were inconsistent with his own trial testimony, and that the trial judge had adequately directed the jury on the nature of circumstantial evidence.

The appeal was ultimately dismissed by the court. The court found that the evidence was sufficient for a jury to reasonably convict the appellant, and that the appellant's claims regarding his trial counsel and the trial judge's directions were not substantiated. Consequently, the court denied the appellant leave to amend his notice of appeal to pursue these claims.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gilbey [2010] QCA 135
PARTIES:	R v GILBEY, Colin Les (appellant)
FILE NO/S:	CA No 294 of 2009 SC No 1242 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	4 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 May 2010
JUDGES:	Fraser and White JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of one count of possessing a dangerous drug after a trial by jury – where the appellant obtained an extension of time to appeal against conviction – where the appellant argued that the evidence did not support a conviction – where the appellant relied on the lack of scientific evidence to connect him with the container of drugs – whether there was sufficient evidence to enable the jury to be satisfied that the prosecution had discharged its burden of proving the appellant was guilty of possessing the container of drugs CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – GENERALLY –where the appellant made submissions that claimed his counsel at trial made an admission contrary to his instructions and did not act competently – where these submissions were unsupported by evidence and inconsistent with appellant’s evidence at trial – where the appellant made further submissions that the trial judge did not adequately direct the jury as to the nature of the circumstantial evidence against the appellant – where the trial judge directed the jury as to the nature of circumstantial evidence and there was no deficiency in that direction – where leave to amend notice of appeal to pursue these submissions was opposed by the respondent – whether leave should be granted R v Gilbey[2010] QCA 4, cited
COUNSEL:	The appellant appeared on his own behalf T A Fuller for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent