R v Kelly

[2005] QCA 103

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly  [2005] QCA 103

PARTIES:

R
v
KELLY, John George Neil
(appellant/applicant)

FILE NO/S:

CA No 3 of 2004
SC No 303 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2005

JUDGES:

McPherson, Jerrard and Keane 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 – PARTICULAR OFFENCES – DRUG OFFENCES – TRAFFICKING – OTHER MATTERS –  where appellant convicted of trafficking, supplying and producing methylamphetamine – evidence established beyond reasonable doubt that appellant was a party to these offences – sentence of eight years’ imprisonment appropriate

Drugs Misuse Act 1986 (Qld), s 4

Martin v Osborne (1936) 55 CLR 367, applied
Tripodi v The Queen (1961) 104 CLR 1, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

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

1. McPHERSON JA:  The appellant John George Kelly pleaded not guilty but was convicted at his trial in the Supreme Court on an indictment charging ten counts of supplying methylamphetamine (counts 4 to 8, 10, and 12 to 15), one count of producing that drug (count 1), and one count of trafficking in it (count 2). He was sentenced to concurrent terms of eight years imprisonment on counts 1 and 2, and to nominal penalties on the specific charges of supplying. The sentences were imposed at the end of the trial at the same time as a sentence of five years was imposed on Kelly’s co-offender Michael Coss, who had pleaded guilty before trial to the same indictment charging him jointly with Kelly with all but one of those counts of supplying.

1. The charges of supplying laid against Kelly related to dates at almost weekly intervals during a period of three months from 21 April 2001 to 20 July 2001. The person supplied in each case was the same individual, who is sufficiently designated here by the name she used of Shelley.  All of the acts of supplying save two took place at the Park Ridge Tavern where Shelley and Coss were in the habit of meeting. The prosecution case was that Kelly was the ultimate supplier to or principal of Coss, the latter being the go-between who was remunerated by Kelly on a sales commission basis; and that this procedure was devised in order to conceal Kelly’s role in the illegal transactions.

1. What Coss and Kelly did not know was that Shelley was a senior constable of police acting throughout as an undercover operative. She had a concealed tape recorder which she activated to record conversations which took place in person at the Tavern with Coss or Kelly or both,…