R v O'Neill - [2001] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 46 of 2001

THE QUEEN
	v.
OWEN O'NEILL

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JUDGES:	ORMISTON and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10, 11 October 2001
DATE OF JUDGMENT:	14 December 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 227

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CRIMINAL LAW – Appeal against conviction and sentence – Attempt to obtain possession of a prohibited import, namely amphetamine, in a trafficable quantity – Whether a combined audio and video tape was admissible in evidence – Whether a transcript of the audio tape could be used by the jury to aid their understanding – Whether a transcript prepared by a police witness was admissible in evidence – Objection to admissibility – Circumstantial evidence – Failure to direct that the conversation in Ex.P (the audio tape) was an indispensable link in a chain of reasoning towards an inference of guilt – Whether verdict unsafe and unsatisfactory – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.T. Barry	Solicitor for Public Prosecutions (Cwth)
For the Applicant	Mr P.G. Priest, Q.C. and Mr M. Croucher	Sherill O’Connor-Gray

ORMISTON, J.A.:

On these applications I have had the benefit of reading the judgment of O’Bryan, A.J.A. in draft form. Subject to what appears below I agree with his reasons.

There is really only one aspect of the application which has caused me concern, namely the use of the tape recording (and the related transcript) of the conversation between the applicant and one Haunga, who admittedly collected the parcel of amphetamines sent from England and who placed that parcel in his car before travelling to Genoa, a small town in the eastern Victoria, for the purpose of meeting the applicant. The tape recording was taken by a microphone hidden on Haunga’s body when he met the applicant that day and it runs for about 18 minutes.

The difficulties arise not so much in relation to the admission of that tape recording in evidence but in relation to the admissibility and use of a transcript of the tape recording which was said to be so indistinct as to be unintelligible to the human ear. It may be said, although the respondent disputed it, that without some understanding of what was said on the tape recording, the prosecution case would have been very thin, for the applicant’s dealings with the parcel otherwise were equivocal to say the least.

Nevertheless, notwithstanding the arguments put on behalf of the applicant, I believe the tape itself was admissible. If that be correct, then the argument based on the verdict being unsafe or unsatisfactory could not succeed, for there was sufficient on the tape, taken with the other evidence, for a reasonable jury properly instructed to be satisfied beyond reasonable doubt of the prosecution case. The real issue, the only issue upon which I have had any doubt, was whether the judge properly instructed the jury in relation to both the tape recording and the transcript prepared by Detective Constable…

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'Neill

Details

AGLC: R v O'Neill [2001] VSCA 227
Case: [2001] VSCA 227
Decision Date: 14 December 2001

CaseChat Overview and Summary

The case of R v O'Neill involved the appellant who was convicted of attempting to obtain possession of a prohibited import, specifically amphetamine in a trafficable quantity. The conviction and subsequent sentence were the subject of an appeal. The matter was heard in the relevant appellate court where the appellant challenged the admissibility of evidence and the safety and satisfaction of the verdict, as well as the sentence.

The primary legal issues in this case revolved around the admissibility of a combined audio and video tape, and a transcript of the audio portion of this recording, which were crucial pieces of evidence presented by the prosecution. The appellant contested the use of these materials on the grounds that they were inadmissible and potentially prejudicial. The court had to determine whether the evidence was properly admitted, and if the jury's use of the transcript was appropriate. Additionally, the court examined whether the failure to direct the jury on the necessity of the conversation in the recording as an indispensable link in the chain of reasoning was a misdirection that rendered the verdict unsafe and unsatisfactory.

In its reasoning, the court found that the combined audio and video tape was admissible as it was relevant and probative of the appellant's guilt. The court also held that the use of a transcript by the jury was permissible as it assisted in understanding the audio evidence. The appellant's objection to the admissibility of the transcript prepared by a police witness was overruled as the witness's role in creating the transcript did not render it inadmissible. The court further concluded that the circumstantial evidence was sufficient to support the conviction, and that the failure to direct the jury on the indispensable nature of the conversation in the recording was not a misdirection that undermined the safety and satisfaction of the verdict. The court found the sentence to be not manifestly excessive.

Consequently, the appeal was dismissed, affirming the conviction and sentence of the appellant. The court's final orders upheld the lower court's decision, ensuring that the appellant's conviction for attempting to obtain possession of a prohibited import remained intact.

Orders