R v McLennan

Case [2024] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLennan [2024] QCA 212

PARTIES:

R
v
McLENNAN, Britney Alana
(appellant)

FILE NO/S:

CA No 3 of 2024
DC No 428 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Townsville – Date of Conviction: 4 December 2023 (Burnett DCJ)

DELIVERED ON:

8 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2024

JUDGES:

Boddice and Brown JJA and Williams J

ORDERS:

1.   Appeal allowed.

2.   Verdict of count 2 set aside.

3.   A new trial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty of one count of armed robbery in company – where the appellant was charged on the basis that she was a party, pursuant to s 8 of the Criminal Code (Qld) – where the Crown particularised the case as it being a probable consequence of the prosecution of that purpose that there would be a robbery of the store attendant and that a knife would be produced – where there was no direct evidence of the appellant having knowledge of the co-offender having possession of a knife – whether the trial judge erred in the directions provided to the jury – whether a miscarriage of justice occurred

HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35, cited

COUNSEL:

J H Horne for the appellant
C M Cook for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. BODDICE JA:  On 4 December 2023, a jury found the appellant guilty of one count of armed robbery in company.

  2. The appellant appeals that conviction on two grounds.  First, that the verdict was unreasonable and cannot be supported having regard to the evidence.  Second, that a miscarriage of justice occurred because the learned trial judge:

    “(a)Did not direct the jury to consider the scope of the common purpose or what the prosecution of the common purpose was intended to involve;

    (b)Directed the jury incorrectly on the objective test in section 8;

    (c)Did not direct the jury on the meaning of ‘probable consequence’;

    (d)Did not direct the jury on the production of a knife as a probable consequence of the common unlawful purpose.”

    Indictment

  3. The appellant was charged that on 28 August 2022 at Townsville in the State of Queensland, she robbed Tristan Connor Whitbread and was armed with a dangerous instrument, namely a knife and was in company with another person.

  4. The appellant was charged on the basis that she was a party, pursuant to s 8 of the Criminal Code (Qld). The Crown particularised the case against the appellant as:

    “The defendant, DC, and unknown co-offenders were in BWS Kirwan, in company, with a common unlawful purpose of stealing alcohol.

    DC had a knife.

    It was a probable consequence of the prosecution of that purpose that:

    ·     There would be a robbery of the store…

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Details
AGLC
R v McLennan [2024] QCA 212
Case
[2024] QCA 212
Decision Date

CaseChat Overview and Summary

The appeal in the matter of R v McLennan involved the appellant, who was found guilty of one count of armed robbery in company. The case was heard in the Queensland Court of Appeal. The appellant challenged the conviction on the grounds of misdirection and non-direction by the trial judge in relation to the jury's understanding of the charge and the evidence presented. Specifically, the appellant argued that the trial judge failed to adequately direct the jury on the distinction between being a principal offender and a party offender under section 8 of the Criminal Code (Qld).

The central legal issue the court had to decide was whether the trial judge's directions to the jury contained any errors that could have led to a miscarriage of justice. The appellant contended that the trial judge's language confused the jury, potentially leading them to believe the appellant was a principal offender rather than a party offender. The court examined whether the trial judge's directions adequately conveyed the legal principles relevant to the charge and whether any misdirection or non-direction was so significant as to necessitate a new trial.

In its judgment, the Court of Appeal found that the trial judge did indeed err in the directions provided to the jury. The judge's use of the term "principal" when referring to the appellant created confusion, as the appellant was charged as a party offender under section 8. The court held that the error in the directions was substantial enough to potentially influence the jury's verdict, thereby affecting the fairness of the trial. Consequently, the court concluded that the appellant's conviction was unsafe and unreliable, warranting a new trial.

The court ordered the appeal to be allowed, the verdict on count 2 to be set aside, and a new trial to be conducted. This decision underscores the importance of precise legal directions in criminal trials to ensure that the jury fully understands the charges and the applicable legal standards.

Orders

Orders of the court

1. Appeal allowed.

2. Verdict of count 2 set aside.

3. A new trial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant was charged on the basis that she was a party, pursuant to s 8 of the Criminal Code (Qld). The Crown particularised the case against the appellant as:“The defendant, DC, and unknown co-offenders were in BWS Kirwan, in company, with a common unlawful purpose of stealing alcohol.DC had a knife.It was a probable consequence of the prosecution of that purpose that:· There would be a robbery of the store attendant; and· That a knife would be produced.”Evidence On 28 August 2022, Darren Morse (Morse) was driving a taxi. He was tasked to pick up passengers from Kirwan, a suburb of Townsville. Initially, no one emerged when he pulled up in the street. As he was about to drive off, he noticed some people approaching the car. Three females hopped into the rear of the vehicle; one male sat in the front passenger seat. He was directed to take them to the Brothers Leagues Club. He requested an upfront payment, which was provided in cash. When that money was running out, he asked for further money, which was also provided to him. Upon arrival at the Club, Morse was asked to wait while they went inside. After “10, 12 minutes tops”, the four returned to his vehicle, empty handed. They directed that he take them to the Kirwan Tavern. He asked them, “Did you not get served?” They replied that they did not. Morse parked outside the BWS Kirwan drive-through, at their request. Morse mentioned that the fare was running out and one of the females paid him more money and asked him not to drive off. After three or four minutes, all four returned to the taxi. One of the females was holding a bottle of tequila and a bottle of whiskey. The three females sat in the back seat. One said to the male, in the front seat, that he had just done an armed hold-up. The male said they were “talking shit” and there was no armed hold-up. At that point, Morse noticed a knife in the male’s lap. As Morse drove off, he looked back to see if there were any alarms going off. Nothing like that happened. He returned the four people back to the address in Kirwan. In cross-examination, Morse agreed that the male in the front seat was in his direct line of sight for the entire trip. At no time did he see a knife prior to the group attending the BWS Kirwan. Throughout their period in the taxi, the four people were boisterous, but not aggressive. At no time prior to returning to the taxi, after the BWS Kirwan, did he hear any discussions about robbing the bottle shop, or about a knife. Morse accepted that in the taxi, after their return from the BWS Kirwan, the discussion about an armed robbery was a discussion in which the word “you” was directed towards the male. He also accepted that the taxi fare was paid in full. The initial cash payment of $25 and the further deposit of $10 was given by one of the females. A final payment of $12.60 was made by bankcard by one of the females. Tristan Whitbread (Whitbread) was working the night shift at the BWS Kirwan on 28 August 2022, by himself. He observed a taxi pull up in the parking lot. Some people emerged from it. He continued to serve a car and then served another car that came into the express lane. At that point, three of the people from the taxi came towards him. He told them he would be a minute.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

After the conclusion of that redirection, counsel requested that the trial judge further redirect the jury as there had been a reference to the appellant as a principal offender. The trial judge returned the jury and redirected them further:“Members of the jury, I have slipped into the use of infelicitous language. I am going to ask you to take from your papers your particulars, A for identification.…Now, I may I am told I used the term principal when I should have said party or vice versa. I cannot recall which. But to make it clear, as I have said, in this case, this defendant is charged as a party offender by reason of section 8. So when you look at the particulars, you will see the first line says the defendant she was the party offender. So the defendant, DC – he was a principal offender – and unknown co-offenders, etcetera, in company or were in company in BWS Kirwan with a common unlawful purpose of stealing alcohol.She is referred to in the indictment in her name as a party offender because by operation of section 8, when, as I have said, two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the course of the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. So it is by reason of section 8 that she has her name in the indictment as being armed with a dangerous instrument, namely a knife, that is, as a party offender.So it is just important you understand that the principal, Mr Ross, a co-accused, so to speak, that I gave you a direction on a little earlier on, carried the knife, but she is culpable by operation of section 8 as a party offender if you are satisfied of the three matters that I outlined or instructed you on earlier in the course of my summing up directions. So my apologies for not having make that clear. It was probably made, I think, clearer for you by taking you back to the particulars, or I hope it was, anyway.”[6]Consideration[6]AB 51/10–40.Ground 1 In order to determine whether a jury verdict was unreasonable and against the weight of the evidence, an appellate court must undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.[7][7]Dansie v The Queen [2022] HCA 25 at [38]. In undertaking this task, the appellate court is to have due regard for the position of a jury in the criminal justice system and the advantages afforded to that jury, by having seen and heard the witnesses at trial.[8] However, if upon an independent assessment of the record there are inconsistencies, discrepancies or other evidence which, allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict of the jury is to be set aside as unreasonable.[9][8]Dansie at [9] citing M v The Queen (1994) 181 CLR 487 at 493.[9]Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39].