Application pursuant to s 590AA Criminal Code 1899 (Qld)
DELIVERED ON:
5 April 2012
DELIVERED AT:
Brisbane
HEARING DATES:
12, 13 September; 30 November 2011
JUDGE:
Peter Lyons J
ORDER:
CATCHWORDS:
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY - where applicant is charged with 12 counts of drug related offences - where a witness gave a police statement testifying as to her participation in transactions related to counts 1-5 on the indictment - where the applicant applies for the entirety of the statement to be excluded on the ground that the prejudicial effect of the statement outweighs its probative value - whether the statement is prejudicial - whether matters of witness credibility speak to the probative value of the statement
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - where the applicant submits that the police statement is unreliable as a result of the circumstances surrounding the giving of it - whether the admission of the police statement would result in an unfair trial
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINIING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY - where counts 1-5 on the indictment relate to five production offences on dates unknown - where particulars were given referring to the time of the first offence as being shortly after the sample sale - where particulars were given as to the quantity involved in one offence being larger than the quantity in the others - where particulars were given as to the location of the offences - where the applicant applies for a stay of counts 1-5 on the indictment on the basis the counts lack particularity - whether sufficient particulars had been provided to allow the transactions to which each of the counts relate to be identified
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINIING PROCEEDINGS - STAY OF PROCEEDINGS - DELAY - where a witness is not available for cross examination - where an audio recording of an identification of the applicant by a covert police officer using a photo board has been lost - where in 2002 a witness gave a document to a police officer who was associated with the investigation - where the applicant applies for a stay of counts 1-5 on the indictment on the basis of the effect of the unavailability of witnesses and evidence and other effects of the passage of time - whether due to the unavailability of evidence and witnesses, or the other effects of the passage of time, the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process
CRIMINAL LAW - EVIDENCE -…
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.
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Details
AGLC
R v Grimes [2012] QSC 229
Case
[2012] QSC 229
Decision Date
CaseChat Overview and Summary
The case of R v Grimes involved the applicant, who was charged with 12 counts of drug-related offences. The applicant applied to exclude certain evidence on various grounds, including its prejudicial effect, unreliability, and hearsay. Additionally, the applicant sought a stay of proceedings for counts 1-5 on the basis of lack of particularity, delay, and unavailability of witnesses. The applicant also sought to exclude identification evidence on the ground that the selection of photographs was unfair. Finally, the applicant sought to exclude a document and a stay of count 12 on the basis that the instructions were not for the production of methylamphetamine. The court was required to decide whether the evidence in question was admissible, and whether the proceedings should be stayed.
The court considered the various grounds for excluding evidence and staying the proceedings. Regarding the police statement, the court found that while it was prejudicial, matters of witness credibility spoke to its probative value, and therefore it should not be excluded. The court also found that the admission of the police statement would not result in an unfair trial. Regarding the stay of proceedings, the court found that sufficient particulars had been provided, and that the unavailability of witnesses and evidence, or the other effects of the passage of time, did not warrant a stay. The court found that there was sufficient material to determine if the two witnesses acted in 'pre-concert', and therefore the hearsay objection was not upheld. The court found that the selection of photographs was not unfair, and therefore the identification evidence should not be excluded. Finally, the court found that the document contained an intention to instruct on the production of methylamphetamine, and therefore the exclusion of the document and a stay of count 12 was not warranted.
The court ruled that the police statement should not be excluded, and that the proceedings should not be stayed. The court also ruled that the hearsay objection was not upheld, that the identification evidence should not be excluded, and that the document contained an intention to instruct on the production of methylamphetamine. Therefore, the exclusion of the document and a stay of count 12 was not warranted.
The court dismissed the application to exclude the police statement, to stay the proceedings, to exclude the hearsay evidence, to exclude the identification evidence, and to exclude the document and stay count 12.