R v Nwabueze - [2012] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nwabueze [2012] QCA 275

PARTIES:

R
v
NWABUEZE, Edwin Uchenna
(appellant)

FILE NO/S:

CA No 366 of 2011
SC No 431 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 May 2012

JUDGES:

Muir and White JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – GENERALLY – where appellant’s interpreter noted to counsel, after guilty verdict returned, that appellant appeared “unintelligent” and had “a flat affect” – where psychological assessment subsequently indicated that appellant had extremely low intellectual functioning – whether jury, acting reasonably, would have acquitted appellant if the new evidence had been available at trial – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant did not give or call evidence at trial – where prosecution case at trial entirely circumstantial – where appellant contended evidence insufficient to draw conclusion of guilt to requisite standard – whether upon whole of evidence it was open to jury to be satisfied beyond reasonable doubt that appellant was guilty

Criminal Code 1995 (Cth), s 5.2(2)

Craig v The King (1933) 49 CLR 429; [1933] HCA 41, considered
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, followed
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered
R v Kaldor (2004) 150 A Crim R 271; [2004] NSWCCA 425, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered

COUNSEL:

D C Shepherd for the appellant
G R Rice SC for the respondents

SOLICITORS:

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

MUIR JA: I agree that the appeal should be dismissed for the reasons given by White JA.

WHITE JA: On 9 November 2011, on the third day of his trial, the appellant was found guilty of one count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug (heroin). He was remanded in custody and sentenced on 22 December 2011 to eight years imprisonment with a non-parole period of two years and nine months. The sentence had been adjourned to enable a psychological assessment of the appellant to be made. That report indicated that the appellant’s intellectual functioning fell in the extremely low range. The appellant seeks to advance this report as fresh evidence in his appeal against…

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 Nwabueze

Details

AGLC: R v Nwabueze [2012] QCA 275
Case: [2012] QCA 275
Decision Date: 12 October 2012

CaseChat Overview and Summary

The case of R v Nwabueze involved the appellant, who had been convicted and sentenced on appeal. The appellant sought a new trial based on the grounds of fresh evidence and a miscarriage of justice. The fresh evidence in question was an interpreter's note that the appellant appeared "unintelligent" and had "a flat affect" during the trial, which was noted after the guilty verdict was returned. Additionally, a psychological assessment revealed that the appellant had extremely low intellectual functioning. The appellant contended that if this evidence had been available at the trial, the jury, acting reasonably, would have acquitted him. The court had to determine whether the new evidence was material and cogent, and whether there was a miscarriage of justice.

The legal issues the court needed to decide included whether the fresh evidence was such that, if available at the trial, it would have led the jury, acting reasonably, to acquit the appellant. The court also had to consider whether the evidence was material and cogent, and whether there was a miscarriage of justice warranting a new trial. Furthermore, the court had to determine whether the conviction was unreasonable or unsupportable, having regard to the evidence presented at trial. The appellant argued that the evidence was insufficient to draw the conclusion of guilt to the requisite standard, given that the prosecution's case was entirely circumstantial and the appellant did not give or call evidence at trial.

The court dismissed the appeal, finding that the fresh evidence was not such that it would have led the jury, acting reasonably, to acquit the appellant. The court held that even if the jury had been aware of the appellant's intellectual disability, it was open to them to be satisfied beyond reasonable doubt that he was guilty. The court concluded that the evidence presented at trial was sufficient to support the conviction. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

The court did not find that there was a miscarriage of justice warranting a new trial, and the orders of the court were that the appeal be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	R v Nwabueze [2012] QCA 275
PARTIES:	R v NWABUEZE, Edwin Uchenna (appellant)
FILE NO/S:	CA No 366 of 2011 SC No 431 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 May 2012
JUDGES:	Muir and White JJA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – GENERALLY – where appellant’s interpreter noted to counsel, after guilty verdict returned, that appellant appeared “unintelligent” and had “a flat affect” – where psychological assessment subsequently indicated that appellant had extremely low intellectual functioning – whether jury, acting reasonably, would have acquitted appellant if the new evidence had been available at trial – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant did not give or call evidence at trial – where prosecution case at trial entirely circumstantial – where appellant contended evidence insufficient to draw conclusion of guilt to requisite standard – whether upon whole of evidence it was open to jury to be satisfied beyond reasonable doubt that appellant was guilty Criminal Code 1995 (Cth), s 5.2(2) Craig v The King (1933) 49 CLR 429; [1933] HCA 41, considered Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, followed He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered R v Kaldor (2004) 150 A Crim R 271; [2004] NSWCCA 425, cited SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, considered
COUNSEL:	D C Shepherd for the appellant G R Rice SC for the respondents
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Commonwealth) for the respondent