R v Isherwood - [2005] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

R v Isherwood [2005] QCA 251

PARTIES:

R
v
ISHERWOOD, Ronald Keith
(appellant/applicant)

FILE NO/S:

CA No 419 of 2004
CA No 7 of 2005
SC No 335 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2005

JUDGES:

Jerrard JA and Muir and Wilson JJ
Separate reasons for judgment of each member of the Court, Muir and Wilson JJ concurring as to the orders made, Jerrard JA dissenting in part

ORDERS:

1. Appeal against conviction dismissed
2. Allow the application for leave to appeal against sentence
3. Substitute a non-parole period of eight years for the nine years imposed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appellant convicted of conspiracy to import cocaine – police recorded numerous conversations where appellant spoke with co-conspirators in coded language – in cross-examination appellant stated that a person with criminal convictions could not apply for a massage parlour licence – appellant’s answer to the prosecutor’s next question indicated that he was unable to apply for such a licence – prosecutor made reference shortly thereafter to the appellant’s ‘criminal cohorts’ – whether these combined questions offended s 15 of the Evidence Act 1977 (Qld) by showing that the appellant had criminal convictions – whether trial judge erred in failing to discharge the jury at that point

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL – appellant claimed his co-accused had misled him into thinking that they were importing gemstones not cocaine – co-accused pleaded guilty – appellant’s counsel apparently made forensic decision not to subpoena co-accused at trial – Buddhist nun gave evidence at trial that co-accused had confessed during counselling sessions to having misled the appellant regarding the importation – co-accused denied this evidence in sentencing submissions – no new knowledge on appeal as to what the co-accused would say if subpoenaed – whether the situation had changed since trial such that it was necessary to allow the appellant to subpoena his co-accused

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant received same head sentence as co-accused – non-parole period of nine years imposed on appellant whilst only eight and a half years imposed on co-accused – co-accused pleaded guilty but had committed more offences whilst on bail – appellant had longer criminal history – whether differences between appellant and co-accused justified a different non-parole period

Evidence Act 1977 (Qld), s 15(2), s 17

Gallagher v The Queen (1986) 160 CLR 392, cited
Jones v Director of…

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 Isherwood

Details

AGLC: R v Isherwood [2005] QCA 251
Case: [2005] QCA 251
Decision Date: 22 July 2005

CaseChat Overview and Summary

In the Supreme Court of Queensland, the appellant, Isherwood, appealed against his conviction and sentence for conspiracy to import cocaine. The crux of the appeal was multifaceted, addressing potential miscarriages of justice and the fairness of the sentencing. The first issue pertained to the improper admission or rejection of evidence during the trial. Specifically, the appellant argued that the prosecutor's questioning implied he had criminal convictions, which might have prejudiced the jury in violation of section 15 of the Evidence Act 1977 (Qld). The appellant also contended that the trial judge erred in not discharging the jury after this incident.

The second aspect of the appeal involved the availability of fresh evidence. The appellant claimed that he was misled by his co-accused into believing they were importing gemstones, not cocaine. His co-accused had pleaded guilty and was sentenced. During the trial, a Buddhist nun testified that the co-accused had confessed to misleading the appellant. However, the co-accused denied this during sentencing submissions. The appellant's counsel had decided not to subpoena the co-accused, but the appellant now sought to do so, arguing that new circumstances warranted this action. The court had to determine whether the situation had evolved enough since the trial to justify allowing the subpoena.

The final issue in the appeal was the disparity in the non-parole periods between the appellant and his co-accused. Although both received the same head sentence, the appellant was given a non-parole period of nine years, whereas the co-accused received eight and a half years. The co-accused had committed more offences while on bail and had a shorter criminal history compared to the appellant. The appellant argued that these differences warranted a different non-parole period. The court had to consider whether the sentencing disparities were justified. The appeal against the conviction was dismissed, but the application to appeal the sentence was allowed, and the non-parole period was reduced to eight years.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Allow the application for leave to appeal against sentence

3. Substitute a non-parole period of eight years for the nine years imposed

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 Isherwood [2005] QCA 251
PARTIES:	R v ISHERWOOD, Ronald Keith (appellant/applicant)
FILE NO/S:	CA No 419 of 2004 CA No 7 of 2005 SC No 335 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2005
JUDGES:	Jerrard JA and Muir and Wilson JJ Separate reasons for judgment of each member of the Court, Muir and Wilson JJ concurring as to the orders made, Jerrard JA dissenting in part
ORDERS:	1. Appeal against conviction dismissed 2. Allow the application for leave to appeal against sentence 3. Substitute a non-parole period of eight years for the nine years imposed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appellant convicted of conspiracy to import cocaine – police recorded numerous conversations where appellant spoke with co-conspirators in coded language – in cross-examination appellant stated that a person with criminal convictions could not apply for a massage parlour licence – appellant’s answer to the prosecutor’s next question indicated that he was unable to apply for such a licence – prosecutor made reference shortly thereafter to the appellant’s ‘criminal cohorts’ – whether these combined questions offended s 15 of the Evidence Act 1977 (Qld) by showing that the appellant had criminal convictions – whether trial judge erred in failing to discharge the jury at that point CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – AVAILABILITY AT TRIAL – appellant claimed his co-accused had misled him into thinking that they were importing gemstones not cocaine – co-accused pleaded guilty – appellant’s counsel apparently made forensic decision not to subpoena co-accused at trial – Buddhist nun gave evidence at trial that co-accused had confessed during counselling sessions to having misled the appellant regarding the importation – co-accused denied this evidence in sentencing submissions – no new knowledge on appeal as to what the co-accused would say if subpoenaed – whether the situation had changed since trial such that it was necessary to allow the appellant to subpoena his co-accused CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – appellant received same head sentence as co-accused – non-parole period of nine years imposed on appellant whilst only eight and a half years imposed on co-accused – co-accused pleaded guilty but had committed more offences whilst on bail – appellant had longer criminal history – whether differences between appellant and co-accused justified a different non-parole period Evidence Act 1977 (Qld), s 15(2), s 17 Gallagher v The Queen (1986) 160 CLR 392, cited Jones v Director of…