R v Schmidt - [2018] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Schmidt [2018] QCA 59

PARTIES:

R
v
SCHMIDT, Andreas
(appellant/applicant)

FILE NO/S:

CA No 357 of 2016
SC No 128 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence (Extension Granted)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 9 August 2016; Date of Sentence: 14 December 2016 (Douglas J)

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2017 (further materials filed 20 & 27 October 2017)

JUDGES:

Fraser and McMurdo JJA and Jackson J

ORDERS:

1. The appeal against conviction be dismissed.

2. The application for leave to appeal against sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the indictment charged the appellant and two other defendants of conspiring with others to traffic in a commercial quantity of a controlled drug contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth) – where the prosecution case against the appellant was based upon evidence of five meetings between the appellant and undercover operatives from the Australian Federal Police – where the physical element of the offence under s 11.5 Criminal Code (Cth) is the conduct of entry into an agreement – where one other party to that agreement must have intended that an offence would be committed pursuant to the agreement – whether the jury could have been mistaken as to what was required to be proved to establish the elements of the offence – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the undercover operatives gave evidence in closed court and behind a screen – where the trial judge gave clear instructions about the need for such measures to protect the identity of the undercover operatives – whether the erection of the screen was to the prejudice of a fair trial – where the appellant submitted that evidence wrongly withheld by the prosecution emerged after the trial – where a federal agent of the Australian Federal Police swore an affidavit deposing that the evidence was provided to the appellant’s trial lawyers – whether there was a miscarriage of justice by relevant material not being disclosed to the appellant’s trial lawyers – where material had been redacted from the transcript but not the audio recording of a meeting between the appellant and an undercover operative that was played to the jury – where defence counsel made no application to discharge the jury – where the trial judge and defence counsel agreed on an appropriate direction for the jury about redacted material – whether the jury hearing material that ought to have been redacted resulted in a miscarriage of justice – where defence counsel were not allowed to cross-examine an undercover operative about dealings with a police informant – where the undercover…

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 Schmidt

Details

AGLC: R v Schmidt [2018] QCA 59
Case: [2018] QCA 59
Decision Date: 29 March 2018

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Schmidt, the appellant contested his conviction and sentence for conspiring to traffic in a commercial quantity of a controlled drug. The case was heard by the High Court of Australia, which considered the appeal against conviction and sentence as well as the application for leave to appeal against sentence. The appellant argued that the conviction was unreasonable or insupportable in light of the evidence, that certain trial procedures prejudiced a fair trial, and that the sentence was manifestly excessive.

The legal issues before the court included whether the jury could have been mistaken as to what was required to be proved to establish the elements of the offence, whether the exclusion of evidence and disallowance of cross-examination led to a miscarriage of justice, and whether the appellant’s sentence was manifestly excessive. The court examined the evidence presented at trial, the trial procedures, and the appellant’s level of involvement in the conspiracy to determine if the appellant’s arguments had merit.

The High Court found that the jury was properly directed on the elements of the offence and that the evidence was sufficient to support the conviction. The court held that the trial procedures, including the closed court and screen used to protect the undercover operatives, did not prejudice a fair trial. It also found that the withheld evidence did not lead to a miscarriage of justice and that the disallowance of cross-examination did not result in a miscarriage of justice because public interest privilege was properly invoked. Finally, the court held that the sentence was not manifestly excessive, taking into account the appellant’s higher level of involvement in the conspiracy.

The final orders of the court were that the appeal against conviction be dismissed, the application for leave to appeal against sentence be refused, and the sentence stand as imposed by the trial court.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. The application for leave to appeal against sentence be refused.

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 Schmidt [2018] QCA 59
PARTIES:	R v SCHMIDT, Andreas (appellant/applicant)
FILE NO/S:	CA No 357 of 2016 SC No 128 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence (Extension Granted)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 9 August 2016; Date of Sentence: 14 December 2016 (Douglas J)
DELIVERED ON:	29 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2017 (further materials filed 20 & 27 October 2017)
JUDGES:	Fraser and McMurdo JJA and Jackson J
ORDERS:	1. The appeal against conviction be dismissed. 2. The application for leave to appeal against sentence be refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the indictment charged the appellant and two other defendants of conspiring with others to traffic in a commercial quantity of a controlled drug contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth) – where the prosecution case against the appellant was based upon evidence of five meetings between the appellant and undercover operatives from the Australian Federal Police – where the physical element of the offence under s 11.5 Criminal Code (Cth) is the conduct of entry into an agreement – where one other party to that agreement must have intended that an offence would be committed pursuant to the agreement – whether the jury could have been mistaken as to what was required to be proved to establish the elements of the offence – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the undercover operatives gave evidence in closed court and behind a screen – where the trial judge gave clear instructions about the need for such measures to protect the identity of the undercover operatives – whether the erection of the screen was to the prejudice of a fair trial – where the appellant submitted that evidence wrongly withheld by the prosecution emerged after the trial – where a federal agent of the Australian Federal Police swore an affidavit deposing that the evidence was provided to the appellant’s trial lawyers – whether there was a miscarriage of justice by relevant material not being disclosed to the appellant’s trial lawyers – where material had been redacted from the transcript but not the audio recording of a meeting between the appellant and an undercover operative that was played to the jury – where defence counsel made no application to discharge the jury – where the trial judge and defence counsel agreed on an appropriate direction for the jury about redacted material – whether the jury hearing material that ought to have been redacted resulted in a miscarriage of justice – where defence counsel were not allowed to cross-examine an undercover operative about dealings with a police informant – where the undercover…