The circumstances giving rise to this appeal are set out in the extensive reasons for judgment of Williams J., which have considerably simplified my task. I am in general agreement with those reasons, and support the orders which his Honour proposes. I propose to elaborate on only one matter.
It is well established that, notwithstanding s. 15 of the Penalties & Sentences Act 1992,[1] the prosecution must prove disputed matters which it relies on at sentencing which are not necessarily concluded against a convicted person by the jury verdict or guilty plea.[2] A number of decisions of the Court of Criminal Appeal,[3] and one decision of this Court,[4] hold that factual issues for the sentencing judge’s decision need not be proved beyond reasonable doubt but only on the balance of probabilities, subject to the proviso that the requisite degree of probability is commensurate with the importance and gravity of the issue and the consequences.
[1]Cf. the former s. 650 of the Criminal Code.
[2]See, for example, R.v. Murphy [1947] QWN 4; West v. Sprinkhuizen; ex p. Sprinkhuizen [1961] QdR 313; Jones v. Chalmers; ex p. Chalmers [1965] QdR 508; R. v. Cooksley [1982] QdR 405, 414.
[3]See, for example, R. v. Welsh [1983] 1 QdR 592; R. v. Boney; ex p. Attorney-General [1986] 1 QdR 190; R. v. Jobson [1989] 2 QdR 464.
[4]R. v. Nardozzi [1995] 2 QdR 87. The point was noted, but did not arise for decision, in R. v. D. [1996] 1 QdR 363.
All of the decisions of the Court of Criminal Appeal preceded the decision of the High Court in Anderson v. R.,[5] in which a majority held that, in South Australia, the standard of proof which rests on the prosecution is “the ordinary criminal standard, namely, beyond reasonable doubt”.[6] Since then, the Western Australian Court of Criminal Appeal,[7] the New South Wales Court of Criminal Appeal,[8] and the Victorian Court of Appeal,[9] in each instance constituted by five judges, has each held that proof beyond reasonable doubt is required in its State. This Court, consisting of five judges, is called upon to decide whether, in future, proof beyond reasonable doubt should also be required in Queensland courts in relation to disputed prosecution allegations at sentencing. The Court is free to overrule Nardozzi and the earlier decisions of the Court of Criminal Appeal if to do otherwise would perpetuate error.[10]
[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.
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AGLC
R v Morrison [1998] QCA 162
Case
[1998] QCA 162
Decision Date
CaseChat Overview and Summary
Phillip John Morrison has appealed against his sentence for drug possession. The appellant was found in possession of heroin and cocaine, with the heroin exceeding the quantity specified in the Third Schedule of the Drugs Misuse Act 1986. The sentencing judge found that the appellant had possession of the heroin for commercial purposes. The appellant pleaded guilty to the charges but maintained that he had possession of the drugs for his own use. The appellant sought leave to appeal against the sentence on the ground that it was manifestly excessive. The Court of Appeal granted leave to appeal against the sentence, allowed the appeal, set aside the sentence and in lieu thereof sentenced the appellant to imprisonment for 5 years with a recommendation that he be eligible for parole after serving 18 months. The Court considered the standard of proof required to establish disputed facts on sentencing and found that the sentencing judge should have been satisfied beyond reasonable doubt that the appellant had possession of the heroin for commercial purposes. The Court found that the material before the sentencing judge did not support the finding that the appellant had possession of the heroin for commercial purposes. The Court found that the sentence imposed was manifestly excessive for the offence of possession of heroin.