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R v Salmon & James

R v Salmon & James

Case [2003] QCA 17 5 February 2003

Appeal

Miscarriage of Justice

Jury Directions

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Salmon & James [2003] QCA 17

PARTIES:

R
v
SALMON, Brad Kym
(appellant)

R
v
JAMES, Gregory William Harley
(appellant)

FILE NO/S:

CA No 251 of 2002
CA No 263 of 2002
SC No 354 of 2002

DIVISION:

Court of Appeal

PROCEEDINGS:

Appeals against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2002

JUDGES:

McMurdo P, Jerrard JA and Helman J
Separate reasons for judgment of each member of the Court; each concurring as to the orders made

ORDER:

In CA No 251 of 2002, appeal dismissed
In CA No 263 of 2002, appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – MISDIRECTION AND NON-DIRECTION – where appellants convicted of murder – whether learned trial judge erred in directions and redirections regarding s 7 and s 8 Criminal Code

CRIMINAL LAW – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – where appellants convicted of murder – whether evidence admitted of previous convictions resulted in miscarriage of justice

Criminal Code 1899 (Qld), s 7, s 8, s 668E(1A)
Criminal Law (Rehabilitation of Offenders) Act 1986 (Cth), s 3
Evidence Act 1977 (Qld), s 15, s 15(2)(d), s 15A

Edwards v The Queen (1993) 178 CLR 193, considered
Festa v The Queen (2001) 76 ALJR 291, followed
Matusevich v The Queen (1977) 137 CLR 633, considered
R v Barlow (1997) 188 CLR 1, considered
R v Crabbe (1985) 156 CLR 464, considered
R v Hind & Harwood (1995) 80 CrimAppR 105, followed
R v McCaul and Palmer [1983] 2 VR 419, considered
R v Nye (1982) 75 CrimAppR 247, considered
R v Sarek [1982] VR 971, considered

COUNSEL:

A J Kimmins for the appellant Salmon
T Carmody SC for the appellant James
B G Campbell for the respondent

SOLICITORS:

Forest Lake Lawyers for the appellant Salmon
Legal Aid Queensland for the appellant James
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: On 1 August 2002 after an eight day trial each appellant was convicted of murdering Kai Lung (John) Chan. Each appellant appeals against his conviction, Salmon on the grounds that his cross-examination by James's counsel as to his previous convictions has resulted in a miscarriage of justice and both appellants on the ground that the learned trial judge erred in directions and redirections regarding ss 7 and 8 of the Criminal Code.

The prosecution case was that the two appellants planned to use a knife to rob the deceased of the day's takings, and that during the robbery each appellant was at least a party to murdering the deceased under s 7 Criminal Code. Alternatively, the prosecution case was that the murder of the deceased was a probable consequence of carrying out a joint plan of armed robbery and each was responsible for the murder under s 8 Criminal Code

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 Salmon & James

Details

AGLC: R v Salmon & James [2003] QCA 17
Case: [2003] QCA 17
Decision Date: 5 February 2003

CaseChat Overview and Summary

In the Supreme Court of Australia, the case of R v Salmon & James was heard as an appeal against conviction. The appellants, Salmon and James, were convicted of murder and argued that there was a miscarriage of justice due to alleged misdirections and non-directions by the trial judge concerning sections 7 and 8 of the Criminal Code, as well as the admission of evidence of their previous convictions. The appellants claimed that these issues could have influenced the jury's verdict.

The primary legal issues the court had to address were whether the trial judge made any errors in directing the jury on the application of sections 7 and 8 of the Criminal Code and if these errors amounted to a miscarriage of justice. Additionally, the court examined whether the evidence of the appellants' previous convictions had any undue influence on the jury's decision-making process. The court had to assess whether, even without these alleged errors, the jury would have reached the same verdict of guilty.

The court carefully reviewed the trial judge's directions and found no significant errors that would constitute a miscarriage of justice. The court also determined that the evidence of the appellants' previous convictions did not unfairly prejudice the jury against them. Consequently, the appeal against conviction was dismissed, and the original convictions were upheld. The court was satisfied that the evidence presented at trial was sufficient to support the jury's verdict, independent of the issues raised by the appellants.

The final orders of the court were to dismiss both appeals in CA No 251 of 2002 and CA No 263 of 2002, maintaining the convictions of Salmon and James for the crime of murder.

Orders

Orders of the court

In CA No 251 of 2002, appeal dismissed

In CA No 263 of 2002, appeal dismissed

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 Salmon & James [2003] QCA 17

Most Recent Citation

R v Deemal-Hall, Darkan and McIvor [2005] QCA 206

Cases citing this decision · 3 of 3 shown

Darkan v The Queen
[2006] HCA 34 Para 17

…f possible, to be so framed as to require no definitions of terms in common use in ordinary speech or writing."[59] [58]Relying on R v Salmon & James [2003] QCA 17 at [45] per McMurdo P, Jerrard JA concurring at [69] and Helman J at [70]. [59]"An Explanatory Letter to the Honourable the Attorney-General", in Dra…
Darkan, Deemal-Hall & McIvor v The Queen
[2006] HCATrans 164

…I have given your Honours the unreported Queensland decision of R v Salmon; R v James [2003] QCA 17. At paragraph [45] of that case concerning the meaning of “probable” – this is in the judgment of the President of the Court of Appeal, her Honour Justice McMurdo, she notes that in that case:…
R v Deemal-Hall, Darkan and McIvor
[2005] QCA 206 Para 1

…n its statutory context as meaning "a real possibility" as the learned trial judge chose to do. [9][1995] QCA 202; (1995) 80 A Crim R 105 at 117. [10][2003] QCA 17; CA No 251 and CA No 263 of 2002, 5 February 2003 at [44].…

View all 3 citing cases →

Cases cited in this decision · 14 of 14 shown

R v Punj
[2002] QCA 333 Para 1

…en v The Queen (1971) 126 CLR 28, 32; R v Irlam ex parte Attorney-General (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002 and R v Punj [2002] QCA 333; CA No 331 of 2001, 3 September 2002.…
R v Irlam; ex parte A-G
[2002] QCA 235 Para 1

…See Boughey at 21-22 and cf Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28, 32; R v Irlam ex parte Attorney-General (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002 and R v Punj [2002] QCA 333; CA No 331 of 2001, 3 September 2002.…
Festa v The Queen
[2001] HCA 72 Para 1

…ing case against Salmon, the cross-examination as to his spent prior minor convictions did not deprive him of the chance of an acquittal.[24] [24]See Festa v The Queen (2001) 76 ALJR 291, [28], [124]-[128], [197]-[204], [223]-[230], [263].…
R v SCA
[2001] QCA 199 Para 1

…ecisive impact on or played any significant role in the jury verdict. [22]See Matusevich at 655. [23]Cf R v Saric [1982] QdR 360, esp 362 and R v SCA [2001] QCA 199; CA No 366 of 2000, 1 June 2001, esp at [12]…
Gilbert v The Queen
[2000] HCA 15 Para 1

…deceased was a more likely outcome of the common intention to prosecute an unlawful purpose.[1] [1] R v Barlow (1997) 188 CLR 1; Gilbert v The Queen (2000) 201 CLR 414, and see s 10A Criminal Code .…
R v Barlow
[1997] HCA 19 Para 1

…manslaughter rather than murder of the deceased was a more likely outcome of the common intention to prosecute an unlawful purpose.[1] [1] R v Barlow (1997) 188 CLR 1; Gilbert v The Queen (2000) 201 CLR 414, and see s 10A Criminal Code .…
Edwards v The Queen
[1993] HCA 63

…, s 8, s 668E(1A) Criminal Law (Rehabilitation of Offenders) Act 1986 (Cth), s 3 Evidence Act 1977 (Qld), s 15, s 15(2)(d), s 15A Edwards v The Queen (1993) 178 CLR 193, considered Festa v The Queen (2001) 76 ALJR 291, followed Matusevich v The Queen (1977) 137 CLR 633, considered R v Barlow (1997) 188 CLR 1, considered R v…
Boughey v the Queen
[1986] HCA 29 Para 1

…means "a real possibility" and that the meaning of "probable" in s 8 Criminal Code should have been explained to the jury. [3](1985) 156 CLR 464. [4](1986) 161 CLR 10. [5](1936) 55 CLR 253.…
R v Crabbe
[1985] HCA 22 Para 1

…[5] suggests "probable" means "a real possibility" and that the meaning of "probable" in s 8 Criminal Code should have been explained to the jury. [3](1985) 156 CLR 464. [4](1986) 161 CLR 10. [5](1936) 55 CLR 253.…
Matusevich v The Queen
[1977] HCA 30

…(Qld), s 15, s 15(2)(d), s 15A Edwards v The Queen (1993) 178 CLR 193, considered Festa v The Queen (2001) 76 ALJR 291, followed Matusevich v The Queen (1977) 137 CLR 633, considered R v Barlow (1997) 188 CLR 1, considered R v Crabbe (1985) 156 CLR 464, considered R v Hind & Harwood (1995) 80 CrimAppR 105, followed R v McCaul…
Green v The Queen
[1971] HCA 55 Para 1

…by ordinary people and does not need further explanation.[6] [6]See Boughey at 21-22 and cf Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28, 32; R v Irlam ex parte Attorney-General (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002 and R v Punj [2002] QCA 333; CA No 331 of 200…
Thomas v The Queen
[1960] HCA 2 Para 1

…is a concept which is well understood by ordinary people and does not need further explanation.[6] [6]See Boughey at 21-22 and cf Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28, 32; R v Irlam ex parte Attorney-General (Qld) [2002] QCA 235; CA Nos 157 and 173 of 2002, 28 June 2002 and R v…
Brennan v The King
[1936] HCA 24 Para 1

…lity" and that the meaning of "probable" in s 8 Criminal Code should have been explained to the jury. [3](1985) 156 CLR 464. [4](1986) 161 CLR 10. [5](1936) 55 CLR 253.…
Benecke v National Australia Bank
[1993] 1 WLR 94 Para 1

…of violence and dishonesty, which the court regarded as highly prejudicial to him and, inferentially, as causing a miscarriage of justice. [21][1983] 2 VR 419.…

Legislation cited in this decision · 2

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld)
3 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
15 2 mentions (from Para 1)

CITATION:	R v Salmon & James [2003] QCA 17
PARTIES:	R v SALMON, Brad Kym (appellant) R v JAMES, Gregory William Harley (appellant)
FILE NO/S:	CA No 251 of 2002 CA No 263 of 2002 SC No 354 of 2002
DIVISION:	Court of Appeal
PROCEEDINGS:	Appeals against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2002
JUDGES:	McMurdo P, Jerrard JA and Helman J Separate reasons for judgment of each member of the Court; each concurring as to the orders made
ORDER:	In CA No 251 of 2002, appeal dismissed In CA No 263 of 2002, appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – MISDIRECTION AND NON-DIRECTION – where appellants convicted of murder – whether learned trial judge erred in directions and redirections regarding s 7 and s 8 Criminal Code CRIMINAL LAW – APPEAL AGAINST CONVICTION – MISCARRIAGE OF JUSTICE – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – where appellants convicted of murder – whether evidence admitted of previous convictions resulted in miscarriage of justice Criminal Code 1899 (Qld), s 7, s 8, s 668E(1A) Criminal Law (Rehabilitation of Offenders) Act 1986 (Cth), s 3 Evidence Act 1977 (Qld), s 15, s 15(2)(d), s 15A Edwards v The Queen (1993) 178 CLR 193, considered Festa v The Queen (2001) 76 ALJR 291, followed Matusevich v The Queen (1977) 137 CLR 633, considered R v Barlow (1997) 188 CLR 1, considered R v Crabbe (1985) 156 CLR 464, considered R v Hind & Harwood (1995) 80 CrimAppR 105, followed R v McCaul and Palmer [1983] 2 VR 419, considered R v Nye (1982) 75 CrimAppR 247, considered R v Sarek [1982] VR 971, considered
COUNSEL:	A J Kimmins for the appellant Salmon T Carmody SC for the appellant James B G Campbell for the respondent
SOLICITORS:	Forest Lake Lawyers for the appellant Salmon Legal Aid Queensland for the appellant James Director of Public Prosecutions (Queensland) for the respondent