R v Organ - [1994] QCA 284

IN THE COURT OF APPEAL [1994] QCA 284

SUPREME COURT OF QUEENSLAND

C.A. No. 104 of 1994

Brisbane
[R. v. Organ]

BETWEEN

T H E Q U E E N
v.
GARY ROSS ORGAN

(Appellant)
Fitzgerald P.
McPherson J.A.
Demack J.

Judgment delivered 11/08/94
Joint Reasons for judgment by McPherson J.A. and Demack J.

Separate reasons by Fitzgerald P. agreeing as to order.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDSCRIMINAL LAW - STEALING AS A SERVANT - Employee of Telstra Corporation (Telecom) - Whether sufficient evidence to identify the property as Telstra's - Whether evidence only sufficient to infer receiving.

CRIMINAL LAW - DIRECTIONS TO JURY - Whether jury must be satisfied that property was recently stolen before inferring that appellant stole it - Whether special verdicts required in respect of each item.

Counsel:M. O'Sullivan for the appellant
T. Winn for the Crown
Solicitors:Suthers & Co. for the appellant
Director of Prosecutions for the Crown
Hearing Date:22 June 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 104 of 1994

Before

Fitzgerald P. McPherson JA. Demack J.

[R. v. Organ]

BETWEEN:

T H E Q U E E N

GARY ROSS ORGAN Appellant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 11/08/94

The circumstances giving rise to this appeal are set out in the judgment of McPherson JA. and Demack J. and need not be repeated. There was a strong circumstantial case against the appellant, and it is not surprising that he was convicted. It is nonetheless necessary to consider whether there is any basis for his appeal.

It is convenient to consider the matter by reference to the agricultural pipe, which, as McPherson JA. and Demack J. state, was, with the black polythene pipe, "the strongest individual items" in the prosecution case against the appellant. Also, as their Honours correctly state, the jury was entitled to convict the appellant on the indictment if the prosecution proved to the requisite standard that he had stolen any one of the items.

The facts in relation to the agricultural pipe may be briefly stated. The appellant was, at the material time, a Telecom employee. Daniel Spencer, the son of the appellant's friend who lived at Bundy Road, Imbil, in premises where the agricultural pipe and other property were found, gave evidence that, in about August 1993, he helped unload the agricultural pipe, which was tied with blue and yellow rope, together with some black polythene pipe, from a Daihatsu 4-wheel drive vehicle and trailer which the appellant had brought to the Bundy Road premises. Colin Arthur Smith, the appellant's immediate superior at the Telecom depot where they worked, identified the agricultural pipe as pipe which had disappeared at about that time from the depot, and identified the blue and yellow rope as Telecom rope. If the jury accepted that evidence, the inference that the appellant had stolen the agricultural pipe, i.e. taken it and converted it to his own use with the intention of permanently depriving Telecom of it, was…

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 Organ

Details

AGLC: R v Organ [1994] QCA 284
Case: [1994] QCA 284
Decision Date: 11/08/1994

CaseChat Overview and Summary

In the case of R v Organ, the appellant, Gary Ross Organ, was convicted in the District Court at Gympie of stealing various items of equipment from Telstra Corporation, which is commonly known as Telecom. Organ, who was a servant of Telecom at the time, appealed against his conviction in the Supreme Court of Queensland. The appeal was dismissed by the Court of Appeal. The primary legal issues involved the sufficiency of the evidence to establish that the property belonged to Telecom and whether the trial judge correctly instructed the jury on the presumptions regarding possession of stolen property. The Court of Appeal found that there was sufficient evidence to identify the stolen property as Telecom's, and that the trial judge did not err in his directions to the jury. Organ was seen bringing agricultural pipe to a property where it was later found, and other items were identified by a Telecom supervisor as missing from their depot. The Court held that the evidence supported the jury's conclusion that Organ had stolen the property, and dismissed the appeal.

Orders