R v O'Neill - [2010] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION:

R v O'Neill [2010] QCA 111

PARTIES:

R
v
O'NEILL, Kevin John
(appellant)

FILE NO/S:

CA No 209 of 2009
SC No 236 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2010

JUDGES:

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

ORDERS:

1. Appeal allowed.
2. Conviction on count 2 is set aside.

3. Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – applicant pleaded not guilty to one court of producing a dangerous drug (count 1) and to the alternative count of permitting a place to be used for the commission of the crime of producing dangerous drugs (count 2) – judge at pre-trial hearing and trial judge allowed evidence about previous production of dangerous drugs in 2003 – applicant found guilty of count 2 – trial judge failed to direct jury that similar fact evidence was inadmissible in respect of count 2 – whether the jury improperly used propensity reasoning in considering count 2 – whether miscarriage of justice

Criminal Code 1899 (Qld), s 668E (1A)
Evidence Act 1977 (Qld), s 130

HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited

COUNSEL:

D C Shepherd for the appellant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: The appellant, Kevin John O'Neill, pleaded not guilty in the Supreme Court at Brisbane to one count of producing a dangerous drug, namely, methylamphetamine (count 1), and to the alternative count of permitting a place to be used for the commission of the crime of producing dangerous drugs (count 2). Both counts were said to have been committed on a date unknown between 5 and 13 March 2008 at O'Neill's home at McGregor Street, Kippa-Ring. Daubney J conducted a pre-trial hearing on 25 March 2009 under s 590AA Criminal Code and made an order allowing the prosecution to lead evidence at O'Neill's pending trial on counts 1 and 2 about his previous production of a dangerous drug, methylamphetamine in 2003 and his subsequent conviction. O'Neill's trial commenced on 27 July 2009 before another judge. Defence counsel unsuccessfully applied to the trial judge to exclude the evidence about the 2003 production and subsequent conviction. On 29 July 2009, O'Neill was found not guilty on count 1 but guilty of count 2. He was ordered to serve the balance (nine months) of an earlier 18 month sentence which had been partially suspended, and sentenced on count 2 to…

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 [2010] QCA 111
Case: [2010] QCA 111
Decision Date: 18 May 2010

CaseChat Overview and Summary

In the case of R v O'Neill, the applicant appealed against his conviction for permitting a place to be used for the commission of the crime of producing dangerous drugs, contending that the trial judge's failure to properly direct the jury regarding the inadmissibility of similar fact evidence amounted to a miscarriage of justice. The applicant had pleaded not guilty to both the primary charge of producing a dangerous drug and the alternative count of permitting a place to be used for such production. The trial proceeded with evidence of the applicant's previous production of dangerous drugs in 2003, which the trial judge permitted despite the applicant's objections. The jury found the applicant guilty of the alternative count, but the trial judge did not instruct them that this prior evidence was inadmissible in relation to count 2. The applicant argued that this omission led to a miscarriage of justice, as the jury might have improperly considered his propensity to commit such crimes.

The primary legal issues before the court were whether the trial judge's failure to direct the jury about the inadmissibility of the similar fact evidence constituted a misdirection or non-direction and, if so, whether this error led to a miscarriage of justice. The court examined the established principles regarding the admissibility of similar fact evidence and the necessity of proper jury directions in criminal trials. It considered whether the error was of such a nature that it might have affected the outcome of the trial and whether the applicant's substantial rights were prejudiced by this omission.

The court concluded that the trial judge's failure to properly direct the jury regarding the inadmissibility of the similar fact evidence was indeed a significant error. The omission of such a crucial direction could have led the jury to improperly consider the applicant's previous conduct, which should have been excluded from their deliberations on count 2. Given the potential impact of this error on the jury's decision-making process, the court found that a miscarriage of justice had occurred. The court held that the applicant's substantial rights were prejudiced, and the failure to provide the proper direction could have influenced the jury's verdict on count 2. Consequently, the appeal was allowed, the conviction on count 2 was set aside, and a retrial was ordered.

The orders of the court were that the appeal was allowed, the conviction on count 2 was set aside, and a retrial was ordered. This decision underscores the importance of clear and accurate jury directions in criminal trials, particularly when similar fact evidence is at issue. The court's ruling ensures that the applicant's right to a fair trial is upheld, and the potential prejudice caused by the trial judge's error is rectified through a retrial.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction on count 2 is set aside.

3. Retrial ordered.

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'Neill [2010] QCA 111
PARTIES:	R v O'NEILL, Kevin John (appellant)
FILE NO/S:	CA No 209 of 2009 SC No 236 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2010
JUDGES:	McMurdo P, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed. 2. Conviction on count 2 is set aside. 3. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – applicant pleaded not guilty to one court of producing a dangerous drug (count 1) and to the alternative count of permitting a place to be used for the commission of the crime of producing dangerous drugs (count 2) – judge at pre-trial hearing and trial judge allowed evidence about previous production of dangerous drugs in 2003 – applicant found guilty of count 2 – trial judge failed to direct jury that similar fact evidence was inadmissible in respect of count 2 – whether the jury improperly used propensity reasoning in considering count 2 – whether miscarriage of justice Criminal Code 1899 (Qld), s 668E (1A) Evidence Act 1977 (Qld), s 130 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited Phillips v The Queen (2006) 225 CLR 303; [2006] HCA 4, cited
COUNSEL:	D C Shepherd for the appellant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent