R v O'Brien - [2009] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

R v O’Brien [2009] QCA 82

PARTIES:

R
v
O’BRIEN, James Thomas
(appellant)

FILE NO/S:

CA No 152 of 2008
SC No 536 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2009

JUDGES:

McMurdo P and Holmes and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction dismissed and application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where appellant convicted of one count of trafficking, two counts of producing a dangerous drug with a circumstance of aggravation and five counts of producing a dangerous drug simpliciter – where evidence of telephone intercepts of sixteen conversations between persons other than appellant admitted under Tripodi principle – where trial judge directed jury as to the use they could make of that evidence – whether direction adequate – whether substantial miscarriage of justice

Criminal Code 1899 (Qld), s 668E(1A)

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, cited
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, cited

COUNSEL:

M J Byrne QC for the appellant
M J Copley SC for the respondent

SOLICITORS:

Winning Lawyers for the appellant
Director of Public Prosecutions (Qld) for the respondent

McMURDO P:The appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Holmes JA.

It is common ground that the recorded intercepted telephone conversations to which the appellant was not a party were admissible as evidence of the appellant's involvement in the common purpose of trafficking with the makers of the recorded telephone conversations.[1]
[1]Tripodi v The Queen (1961) 104 CLR 1.

Some judges may have considered it prudent in this case to have taken the more detailed approach favoured by Chesterman JA in his reasons and to have directed the jury in the terms discussed by Mason CJ, Wilson, Deane, Dawson and Toohey JJ in Ahern v The Queen,[2] applying those principles to the facts of this case. The appellant now contends that the failure to do so is an appellable error of law.
[2](1988) 165 CLR 87 at 104. Set out in Holmes JA's reasons at [28].

This case was, however, very different to Ahern. The appellant's lawyer at trial took a different approach to that of his lawyer on this appeal. At trial, the appellant's lawyer astutely and frankly acknowledged that the directions now sought would not have been helpful to the appellant's case.[3] No doubt that was because the direction that the appellant now contends…

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 O'Brien

Details

AGLC: R v O'Brien [2009] QCA 82
Case: [2009] QCA 82
Decision Date: 9 April 2009

CaseChat Overview and Summary

The appeal was brought by the appellant against his convictions for various drug-related offences. The appellant had been found guilty of one count of trafficking, two counts of producing a dangerous drug with an aggravating circumstance, and five counts of producing a dangerous drug. The case was heard by the court of appeal, which considered whether the trial judge had adequately directed the jury regarding the use of intercepted telephone conversations between third parties, admitted under the Tripodi principle. The appellant argued that the jury's direction was inadequate, resulting in a substantial miscarriage of justice.

The central legal issues were whether the trial judge had correctly directed the jury on the use of the intercepted conversations and whether any error in this direction was so significant as to warrant a new trial. The court considered whether the appellant had established that any misdirection or non-direction by the trial judge was so substantial as to necessitate a new trial or an acquittal on the grounds of a substantial miscarriage of justice. The court examined the evidence, the trial judge's directions, and the legal principles applicable to the admissibility and use of intercepted communications.

The court of appeal held that the trial judge had adequately directed the jury on the use of the intercepted telephone conversations. The court found that the directions given were in accordance with established legal principles and that the jury was properly informed of the limited use of the intercepted conversations. The court concluded that there was no substantial miscarriage of justice and dismissed the appeal against conviction. The court also refused the application for leave to appeal against the sentence. The appellant's appeal was dismissed, and his convictions were upheld. The application for leave to appeal against sentence was refused.

Orders

Orders of the court

Appeal against conviction dismissed and 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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CITATION:	R v O’Brien [2009] QCA 82
PARTIES:	R v O’BRIEN, James Thomas (appellant)
FILE NO/S:	CA No 152 of 2008 SC No 536 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2009
JUDGES:	McMurdo P and Holmes and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction dismissed and application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where appellant convicted of one count of trafficking, two counts of producing a dangerous drug with a circumstance of aggravation and five counts of producing a dangerous drug simpliciter – where evidence of telephone intercepts of sixteen conversations between persons other than appellant admitted under Tripodi principle – where trial judge directed jury as to the use they could make of that evidence – whether direction adequate – whether substantial miscarriage of justice Criminal Code 1899 (Qld), s 668E(1A) Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, cited Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, cited Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, cited
COUNSEL:	M J Byrne QC for the appellant M J Copley SC for the respondent
SOLICITORS:	Winning Lawyers for the appellant Director of Public Prosecutions (Qld) for the respondent