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R v Perry

R v Perry

Case [2011] QCA 236 16 September 2011

Appeal

Miscarriage of Justice

Admissibility of Evidence

Jury Directions

Sentencing

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Perry [2011] QCA 236

PARTIES:

R
v
PERRY, David Samuel
(appellant/applicant)

FILE NO/S:

CA No 128 of 2011
DC No 2028 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2011

JUDGE:

Margaret McMurdo P and Muir JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:
1.The appeal against conviction in respect of count 1 be allowed.

2.The conviction in respect of count 1 be set aside and a verdict of acquittal be entered.

3.The appeal against conviction in respect of count 2 be dismissed.

4. Leave to appeal against sentence be granted and allowed.

5.The appellant be sentenced, in respect of count 2, to 12 months imprisonment.

6.The appellant be released immediately under s 20(1)(b) of the Crimes Act 1914 (Cth), upon giving security by recognizance in the sum of $1,000 conditionalthat he be of good behaviour for a period of three years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of giving false evidence to an Australian Crime Commission examiner under s 33(1) of the Australian Crime Commission Act 2002 (Cth) – where the appellant submits the jury’s verdict was unsafe and unsatisfactory – whether the jury’s verdict in respect of count one is unreasonable and not supported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant submits that telephone intercept evidence should be excluded as inadmissible hearsay – where the falsity of the appellant’s evidence before the examiner and his knowledge of that falsity was at issue – whether the evidence was properly admissible at trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant submits the jury was not properly directed as to how it could use the telephone intercept evidence – whether the jury was properly directed

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERING – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant submitted the sentence imposed was manifestly excessive – where the appellant had no involvement with the primary criminal activity – whether the sentence imposed was appropriate in all the circumstances

Australian Crime Commission Act 2002 (Cth), s 33(1)
Crimes Act 1914 (Cth), s 20(1)(b)

R v Abell[2007] QCA 448, cited
R v Hytch (2000) 114 A Crim R 573, [2000] QCA 315, considered
Ratten v The Queen (1972] AC 378, cited
Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, considered

COUNSEL:

P…

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 Perry

Details

AGLC: R v Perry [2011] QCA 236
Case: [2011] QCA 236
Decision Date: 16 September 2011

CaseChat Overview and Summary

The appellant in this case was convicted by a jury of two counts of providing false evidence to an examiner from the Australian Crime Commission, contrary to section 33(1) of the Australian Crime Commission Act 2002 (Cth). The appellant appealed against his conviction and sentence on several grounds, including that the verdict was unreasonable, that the jury was not properly directed on the use of certain telephone intercept evidence, and that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia.

The central legal issues before the court were whether the jury's verdict on count one was unreasonable and not supported by the evidence, whether the telephone intercept evidence was improperly admitted or rejected, whether the jury was adequately directed on the use of that evidence, and whether the sentence imposed was manifestly excessive. The court considered these issues in turn, applying the relevant legal principles and examining the evidence and submissions from both parties.

The court found that the jury's verdict on count one was unreasonable and not supported by the evidence. It held that the appellant had not provided false evidence to the examiner, and that the evidence of the telephone intercepts was not properly admitted as hearsay. The court also found that the jury was not adequately directed on the use of the telephone intercept evidence, and that this amounted to a miscarriage of justice. The court noted that the appellant had no involvement with the primary criminal activity, and that the sentence imposed was manifestly excessive. The appeal against conviction on count one was allowed, the conviction was set aside and a verdict of acquittal was entered, and the appeal against conviction on count two was dismissed. The appeal against sentence was allowed, and the appellant was sentenced to 12 months imprisonment, to be released immediately upon giving security by recognizance in the sum of $1,000 conditional that he be of good behaviour for a period of three years.

The court's final orders were that the appeal against conviction in respect of count 1 be allowed, the conviction in respect of count 1 be set aside and a verdict of acquittal be entered, the appeal against conviction in respect of count 2 be dismissed, leave to appeal against sentence be granted and allowed, the appellant be sentenced in respect of count 2 to 12 months imprisonment, and the appellant be released immediately under s 20(1)(b) of the Crimes Act 1914 (Cth), upon giving security by recognizance in the sum of $1,000 conditional that he be of good behaviour for a period of three years.

Orders

Orders of the court

1.The appeal against conviction in respect of count 1 be allowed.

2.The conviction in respect of count 1 be set aside and a verdict of acquittal be entered.

3.The appeal against conviction in respect of count 2 be dismissed.

4. Leave to appeal against sentence be granted and allowed.

5.The appellant be sentenced, in respect of count 2, to 12 months imprisonment.

6.The appellant be released immediately under s 20(1)(b) of the Crimes Act 1914 (Cth), upon giving security by recognizance in the sum of $1,000 conditionalthat he be of good behaviour for a period of three years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Perry [2011] QCA 236

Most Recent Citation

R v Handlen [2015] QCA 292

Cases citing this decision · 5 of 5 shown

Perry and Go Marine Group Pty Ltd (Compensation)
[2023] AATA 4214 Para 7

…as imprisoned, his employment was terminated, and his employer claimed he had abandoned his employment although they knew where he was. [2] R v Perry [2011] QCA 236.…
East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic
[2019] WASCA 18 Para 12

…lly, to prove the truth of its contents, and using it as a circumstance to support the drawing of an inference as to a fact in issue. [266] R v Perry [2011] QCA 236 [30] ‑ [38].…
R v Handlen
[2015] QCA 292 Para 9

…not a party, the Crown argued that the hearsay rule is not engaged as they were relied on circumstantially, not testimonially: R v Perry [2011] QCA 236 at [30] – [35].” [8][2011] QCA 236 at [30] – [35]. [9][1956] 1 WLR 965, 970.…
Forsyth v The Queen
[2015] WASCA 36 Para 3

…submits that the sentences imposed upon him were inconsistent with the outcomes in these cases. The cases referred to by the appellant were R v Perry [2011] QCA 236; R v Nash [2008] SASC 48; (2008) 100 SASR 109; R v Hood [2007] NSWDC 157; R v Rodd; Ex parte Attorney‑General (Qld) [2008] QCA 341; Mercanti v The Qu…
R v Handlen
[2014] QSC 40 Para 1

…efendant was not a party, the Crown argued that the hearsay rule is not engaged as they were relied on circumstantially, not testimonially: R v Perry [2011] QCA 236 at [30]-[35].…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Abell
[2007] QCA 448 Para 1

…s one or more offences of giving false evidence.[25] A head sentence of 12 months imprisonment in respect of count two is appropriate. [24] R v Abell [2007] QCA 448. [25] R v Abell [2007] QCA 448; R v Bazzo (Unreported, District Court, Brisbane, 31 May 2010, Jones DCJ); R v Cleave (Unreported, District Court, Sou…
Pinkstone v The Queen
[2003] WASCA 66 Para 1

…rence, they are admissible.[11] [10]See, for example, R v Hytch (2000) 114 A Crim R 573; Bull v The Queen (2000) 201 CLR 443; Pinkstone v The Queen [2003] WASCA 66. [11] Walton at 305.…
R v Hytch
[2000] QCA 315

…1914 (Cth), s 20(1)(b) R v Abell [2007] QCA 448, cited R v Hytch (2000) 114 A Crim R 573, [2000] QCA 315, considered Ratten v The Queen (1972] AC 378, cited Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, considered COUNSEL: P Flanaghan SC, with A Stoker, for the appellant S Ryan for the respondent SOLICITOR…
Bull v The Queen
[2000] HCA 24 Para 1

…forward otherwise to found a relevant inference, they are admissible.[11] [10]See, for example, R v Hytch (2000) 114 A Crim R 573; Bull v The Queen (2000) 201 CLR 443; Pinkstone v The Queen [2003] WASCA 66. [11] Walton at 305.…
Walton v The Queen
[1989] HCA 9

…considered Ratten v The Queen (1972] AC 378, cited Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, considered COUNSEL: P Flanaghan SC, with A Stoker, for the appellant S Ryan for the respondent SOLICITORS: Patrick Murphy Solicitor for the appellant Commonwealth Director of Public Prosecutions for the respo…
[1972] AC 378
[1972] AC 378 Para 1

…ch an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted.[8] [7] Ratten v The Queen [1972] AC 378 at 387. [8] Walton at 302.…
(1972] AC 378
(1972] AC 378

…8, cited R v Hytch (2000) 114 A Crim R 573, [2000] QCA 315, considered Ratten v The Queen (1972] AC 378, cited Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, considered COUNSEL: P Flanaghan SC, with A Stoker, for the appellant S Ryan for the respondent SOLICITORS: Patrick Murphy Solicitor for the appellant…

Legislation cited in this decision · 2

Australian Crime Commission Act 2002 (Cth)
33(1) 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
20(1)(b) 2 mentions (from Para 1)

CITATION:	R v Perry [2011] QCA 236
PARTIES:	R v PERRY, David Samuel (appellant/applicant)
FILE NO/S:	CA No 128 of 2011 DC No 2028 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2011
JUDGE:	Margaret McMurdo P and Muir JA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.The appeal against conviction in respect of count 1 be allowed. 2.The conviction in respect of count 1 be set aside and a verdict of acquittal be entered. 3.The appeal against conviction in respect of count 2 be dismissed. 4. Leave to appeal against sentence be granted and allowed. 5.The appellant be sentenced, in respect of count 2, to 12 months imprisonment. 6.The appellant be released immediately under s 20(1)(b) of the Crimes Act 1914 (Cth), upon giving security by recognizance in the sum of $1,000 conditionalthat he be of good behaviour for a period of three years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of two counts of giving false evidence to an Australian Crime Commission examiner under s 33(1) of the Australian Crime Commission Act 2002 (Cth) – where the appellant submits the jury’s verdict was unsafe and unsatisfactory – whether the jury’s verdict in respect of count one is unreasonable and not supported by the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant submits that telephone intercept evidence should be excluded as inadmissible hearsay – where the falsity of the appellant’s evidence before the examiner and his knowledge of that falsity was at issue – whether the evidence was properly admissible at trial CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellant submits the jury was not properly directed as to how it could use the telephone intercept evidence – whether the jury was properly directed CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERING – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant submitted the sentence imposed was manifestly excessive – where the appellant had no involvement with the primary criminal activity – whether the sentence imposed was appropriate in all the circumstances Australian Crime Commission Act 2002 (Cth), s 33(1) Crimes Act 1914 (Cth), s 20(1)(b) R v Abell[2007] QCA 448, cited R v Hytch (2000) 114 A Crim R 573, [2000] QCA 315, considered Ratten v The Queen (1972] AC 378, cited Walton v The Queen (1989) 166 CLR 283; [1989] HCA 9, considered
COUNSEL:	P…