R v Mondon

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mondon [2001] QCA 402

PARTIES:

R
v
MONDON, Leonard Francis Mervyn
(appellant)

FILE NO/S:

CA No 61 of 2001
DC No 11 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING 
COURT:

District Court at Mackay

DELIVERED ON:

28 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2001

JUDGES:

McPherson JA, Chesterman and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

EVIDENCE – ADMISSIBILITY AND RELEVANCY – where appellant convicted of arson – where tape recording of an admission admitted into evidence at trial – whether tape recording wrongly admitted into evidence – whether tape recording so poor as to make the sounds unintelligible – whether contents of the tape recording so unclear and undecipherable as to make it unfair to the appellant

The Queen v Bercolli & Ioannou CCA No 22 and 23 of 1990, 18 May 1990, distinguished

COUNSEL:

Mr P T Cullinane for the appellant
Mr N Weston for the Crown

SOLICITORS:

Taylors Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the Crown

1. McPHERSON JA: I have read and agree with the reasons of Chesterman J for dismissing the appeal.

1. There is nothing I wish to add to his Honour’s reasons except to make a comment on the decision in R v Bercolli & Ioannu (CCA Nos 22 and 23 of 1990). The offence charged in that case was attempting to procure a murder, which was alleged to have been committed by each of the two accused in the course of a conversation at which they and one Mangakahia were present. Mangakahia, who was the person they allegedly attempted to procure to carry out the murder, was in fact an undercover policeman who was fitted with a sound recording device which succeeded in recording some but not all of the conversation that took place.

1. The deficiencies in the recording there were critical to the case for two reasons. One was that the conversation was not (as it was here) simply a recorded statement by the accused confessing to having on some other occasion committed an offence. On the contrary, the conversation was the very act constituting the offence of procurement or attempting to procure. Expressed in the language of the common law, it was or contained the actus reus of the attempted procurement itself. In that respect, it resembled a conspiracy to procure a murder, of which the essential element of agreement must exist and be proved to exist. The jury had acquitted the two accused of just such a conspiracy committed in the course of the same conversation, but convicted them each of attempted procurement.

1. The second reason why it was critical to proof of the charge in that case that the jury be provided with a complete and intelligible recording of the conversation was that it was the conversation that was alleged to disclose the…