R v McCosker

Case [2010] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v McCosker [2010] QCA 52

PARTIES:

R
v
McCOSKER, Victor
(appellant)

FILE NO/S:

CA No 128 of 2009
DC No 13 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Goondiwindi

DELIVERED ON:

19 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2010

JUDGES:

Keane, Holmes and Chesterman JJA
Separate reasons for judgment of each member of the Court, Keane and Chesterman JJA concurring as to the orders made, Holmes JA dissenting

ORDERS:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – PARTIALITY – where appellant and co-accused were convicted of stealing grain valued at $159,418 from their employer – where a woman juror who became speaker was acquainted with the appellant by reason of her close friendship with his wife over many years – where the appellant’s wife had told the juror three months earlier that she suspected the appellant was “guilty of something” – where the juror did not inform the judge of this conversation or of her acquaintance with the appellant – where the appellant learned of the conversation on the second day of the trial – where the appellant did not challenge the juror – whether a fair-minded member of the public who knew of the conversation might reasonably suspect the juror may not discharge her task impartially – whether as a matter of law an accused may waive objection to a juror about whom there is apprehended bias – whether as a matter of fact the accused waived the right to object to the juror’s presence on the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where a witness gave evidence of conversations between himself and the appellant’s co-accused in the absence of the appellant – where it was common ground the evidence was admissible against the appellant as statements done in furtherance of a common purpose – where counsel for the co-accused when cross-examining the witness did not challenge his evidence of the conversations – whether the trial judge misdirected the jury in relation to the evidence – whether such an error would lead to the quashing of the conviction and a retrial

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was sentenced to four years’ imprisonment for stealing $159,418 from his employer – where his offending involved persistent, systematic dishonesty – where appellant showed no remorse and maintained he had been wrongly convicted – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 604(1), s 688E(1A)
Jury Act 1995 (Qld), s 42, s 43, s 46

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, cited
Brown…

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AGLC
R v McCosker [2010] QCA 52
Case
[2010] QCA 52
Decision Date

CaseChat Overview and Summary

The appellant, along with his co-accused, was convicted of stealing grain worth $159,418 from their employer. The appellant appealed against his conviction and sentence, citing irregularities related to the jury, misdirection by the trial judge, and the sentence being manifestly excessive. The court was required to determine whether there was any irregularity in the jury selection that could have prejudiced the appellant's right to a fair trial, whether the trial judge's direction to the jury was erroneous, and whether the sentence was manifestly excessive.

The court first examined the alleged irregularity concerning a juror who had a prior acquaintance with the appellant through his wife. The juror did not disclose this relationship or a conversation she had with the appellant's wife, where she expressed suspicion about his guilt. The appellant became aware of the conversation during the trial but chose not to challenge the juror. The court considered whether a fair-minded observer might doubt the juror's impartiality and whether the appellant waived his right to object by not challenging her. The court held that no irregularity occurred as the juror did not disclose relevant facts that might indicate bias and the appellant did not exercise his right to challenge her. The court also reviewed the trial judge's handling of the evidence concerning conversations between the witness and the co-accused in the absence of the appellant, finding no misdirection or non-direction that would warrant a retrial. Finally, the court assessed the sentence, concluding it was not manifestly excessive given the persistent and systematic nature of the appellant's dishonesty.

The appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

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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