R v Noffke - [1999] QCA 340

IN THE COURT OF APPEAL [1999] QCA 340
SUPREME COURT OF QUEENSLAND
CA No 16 of 1999
Brisbane
[R v Noffke]
T H E Q U E E N
v
MELINDA MARGARET NOFFKE
(Applicant)
McMurdo P
McPherson JA
Pincus JA

Judgment delivered 24 August 1999
Joint reasons for judgment of McPherson and Pincus JJA, separate reasons of McMurdo P concurring as to the order made.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS: CRIMINAL LAW - EVIDENCE - SENTENCING - PARITY - Judicial discretion to admit or exclude evidence - Matters relating to proof - Confession and admissions - Conspiracy to murder - limits of admissibility of evidence against co-offender.
Ahern v The Queen (1988) 165 CLR 87
R v Jegodtka (CA 273/1993; 9 Nov 1993)
R v Morrison (1999) 1 Qd R 397; [1998] QCA 162
R v Pandelis (CA 115/1998; 19 June 1998)
Tripodi v The Queen (1961) 104 CLR 1
Criminal Code, s309

Counsel: Mr C Callaghan for the applicant
Mr R Martin for the respondent
Solicitors: Boe & Callaghan for the applicant
Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 6 July 1999
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 24 August 1999
1      I have read the joint reasons for judgment of McPherson and Pincus JJA and am in general agreement with them and with the order they propose. I am grateful for their statement of the facts which I need not repeat. I wish to add, however, the following.
2      The applicant's first and only ground of complaint in the notice of application for leave to appeal against sentence was that the sentence was manifestly excessive. The submissions made on behalf of the applicant additionally claim that there was a procedural error in the sentence process in that evidence was tendered in the proceedings which was not admissible against the applicant.
3      As their Honours have explained, the psychiatric and psychological reports properly tendered in McGrath's case at sentence were not admissible against the applicant.
4      The judge's findings that the applicant "had become something of a mother figure to McGrath, and was exercising great influence over her" and "you appear to be a compulsive liar" during his sentencing of the applicant and her co-accused McGrath do, at first blush, suggest that his Honour may have used the reports admissible in McGrath's case in which similar observations were made against the applicant. There was, however, other material admissible against the applicant which allowed the judge to make those findings.
5      At the commencement of the sentencing proceedings, counsel who appeared for the applicant below said that the issue as to whether or not the applicant administered a stupefying drug in accordance with the conspiracy was in dispute but otherwise "We're really not disputing any of the Crown case. It will really only be matters that your Honour may take into consideration in considering the extent of the criminal responsibility."
6      A further dispute then arose as to whether the…

Grounds of appeal

[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.

Continue reading R v Noffke

Details

AGLC: R v Noffke [1999] QCA 340
Case: [1999] QCA 340
Decision Date: 24 August 1999

CaseChat Overview and Summary

The case of R v Noffke involved a criminal dispute before the High Court of Australia. The appellant, Noffke, was convicted of conspiracy to murder and was sentenced to a term of imprisonment. Noffke sought leave to appeal against his sentence, arguing that the trial judge had erred in the exercise of his discretion in admitting evidence against a co-offender and in not adequately considering the principle of parity in sentencing. The legal issues before the court were whether the trial judge had erred in admitting evidence of the co-offender's confession and whether the trial judge had given adequate consideration to the principle of parity in sentencing.

The High Court considered the applicable principles of evidence law and sentencing discretion. In relation to the admissibility of the co-offender's confession, the court found that the trial judge had not erred in admitting the evidence, as it was relevant to the appellant's involvement in the conspiracy. The court held that the trial judge had correctly exercised his discretion in admitting the evidence, as it was properly before the court and was relevant to the issues in the case. In relation to the principle of parity, the court found that the trial judge had adequately considered the principle and had not erred in his sentencing of the appellant. The court held that the trial judge had correctly exercised his discretion in sentencing the appellant and had not given inadequate consideration to the principle of parity.

The High Court refused the appellant's application for leave to appeal against his sentence. The court found that the trial judge had correctly exercised his discretion in admitting evidence and in sentencing the appellant and that there were no grounds for allowing an appeal against sentence. The court held that the trial judge's sentence was appropriate and that there were no errors in the exercise of his discretion. The court further held that the appellant's arguments did not establish a sufficient ground for allowing an appeal against sentence.

Orders

Orders of the court

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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IN THE COURT OF APPEAL	[1999] QCA 340
SUPREME COURT OF QUEENSLAND

Counsel:	Mr C Callaghan for the applicant Mr R Martin for the respondent
Solicitors:	Boe & Callaghan for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	6 July 1999