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R v Surrey

R v Surrey

Case [2005] QCA 4 4 February 2005

Miscarriage of Justice

Misdirection and Non-Direction

Improper Admission or Rejection of Evidence

Appeal

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Surrey [2005] QCA 4

PARTIES:

R
v
SURREY, John Arthur Powys
(appellant)

FILE NO/S:

CA No 324 of 2003
SC No 352 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2004

JUDGES:

McPherson and Jerrard JJA and Jones J
Separate reasons for judgement of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL COUNTS – where appellant convicted of two counts of murder and one count of interfering with a corpse – where all counts tried on same indictment – where there was no application by counsel for reconsideration of the joinder – whether trial judge should have made a late order separating the trials to avoid a miscarriage of justice resulting from the combination of directions given

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER THE JURY WOULD HAVE RETURNED THE SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where trial judge gave “micro-Weissensteiner” direction on the appellant’s silence in court – whether such a direction caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER THE JURY WOULD HAVE RETURNED THE SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where trial judge gave Edwards direction regarding the jury’s conclusion on whether deliberate lies had been told which showed a consciousness of guilt – whether such a direction was defective – whether such a direction caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER THE JURY WOULD HAVE RETURNED THE SAME VERDICT – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where witness gave identification evidence regarding security photographs – whether the witness’ opinion that the person in the photograph was the appellant was inadmissible as evidence

Criminal Code 1899 (Qld), s 567

Azzopardi v R (2001) 205 CLR 50, applied
Edwards v R (1993) 178 CLR 193, applied
Peacock v R (1911) 13 CLR 619, cited
R v Collins; ex parte Attorney-General [1996] 1 Qd R 631, followed
R v Cranston [1988] 1 Qd R 159, cited
R v DAH [2004] QCA 419; CA No 153 of 2004, 5 November 2004, followed
R v Griffith [1997] 2 Qd R 524, cited
R v Nicholson; ex parte DPP (Cth); R v Hyde-Harris; ex parte DPP (Cth) [2004] QCA 393; CA No 214 of 2004, CA No 215 of 2004, CA No 225 of 2004, CA…

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 Surrey

Details

AGLC: R v Surrey [2005] QCA 4
Case: [2005] QCA 4
Decision Date: 4 February 2005

CaseChat Overview and Summary

In the case of R v Surrey, the appellant was convicted of two counts of murder and one count of interfering with a corpse. All counts were tried on the same indictment without an application by counsel for reconsideration of the joinder. The appellant appealed on several grounds, including the trial judge's failure to make a late order separating the trials, a "micro-Weissensteiner" direction on the appellant's silence, an Edwards direction regarding deliberate lies showing consciousness of guilt, and the admission of identification evidence from a witness. The court was required to determine whether these errors led to a miscarriage of justice, whether the jury would have returned the same verdict, and whether the admission of evidence was proper.

The court considered whether the trial judge should have separated the trials to avoid a miscarriage of justice. The court found that the trial judge did not err in not separating the trials, as the appellant did not demonstrate that a separate trial was necessary to avoid a miscarriage of justice. Regarding the "micro-Weissensteiner" direction, the court held that the direction was not improper, as it did not suggest to the jury that the appellant's silence was an admission of guilt. The Edwards direction was also found to be proper, as it did not misdirect the jury on the significance of deliberate lies showing consciousness of guilt. Lastly, the court found that the witness' identification evidence was properly admitted, as the opinion of the witness was not inadmissible as evidence.

The appeal was dismissed, and the convictions were upheld. The court found no errors that would have caused a miscarriage of justice, and the trial judge's directions and the admission of evidence were proper. The appellant's convictions on all counts were therefore affirmed.

Orders

Orders of the court

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.

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Citations

R v Surrey [2005] QCA 4

Most Recent Citation

R v BBO [2008] QCA 276

Cases Citing This Decision

R v McEwan [2019] QCA 16
Citation 1

…8] QCA 303 , cited R v Hillier (2007) 228 CLR 618; [2007] HCA 13, cited R v Surrey [2005] 2 Qd R 81; (2005) 151 A Crim R 547; [2005] QCA 4 , considered RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, considered COUNSEL: S C Holt QC for the ap…
R v Jassar [2013] QCA 115
Citation 2

…] QCA 492, considered R v Smith [1937] QWN 16, cited R v Surrey [2005] 2 Qd R 81; [2005] QCA 4, considered R v Tooma [1971] Qd R 212, considered RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, considered TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA…
Lavaring v Forbes [2009] WASC 88
Citation 3 (Para 4)

…SWLR 346 at [15]‑[25]; [2005] NSWCCA 20; BC200500719; R v DAH (2004) 150 A Crim R 14; [2004] QCA 419; BC200407327; R v Surrey [2005] 2 Qd R 81; [2005] QCA 4; BC200500150; cf R v Macris (2004) 147 A Crim R 99; [2004] NSWCCA 261; BC200404880.) However, the cases in which comment about the way in which the jury mi…
R v BBO [2008] QCA 276
Citation 4 (Para 1)

…not to give evidence is correct: R v DAH ;[3] R v Surrey .[4] [3](2004) 150 A Crim R 14; [2004] QCA 419 at 34-36 [83]-[87]. [4][2005] 2 Qd R 81; [2005] QCA 4.…
Hyde-Harris v The Queen [2005] HCATrans 790
Citation 5

…ence, and whether in fact the minimum standard is what was outlined by the majority. The next of the decisions in Queensland was the matter of Surrey [2005] QCA 4, and that was handed down on 4 February 2005. So far as ‑ ‑ ‑…

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Cases Cited

Smith v The Queen [2017] HCA 19
Citation 1 (Para 1)

…e photograph was Mr Surrey was not admissible. That inadmissibility was established by the decision of the High Court in Smith v R [2001] HCA 50; (2001) 206 CLR 650 at [10], [11], and [58]; those judgments emphasise, as does the judgment of this Court in R v Griffith [1997] 2 Qd R 524, that the comparison between the…
R v DAH [2004] QCA 419
Citation 2 (Para 1)

…ps in the evidence of the prosecution, and may not be used as a “make-weight”. (I respectfully agree with the observation of White J in R v DAH [2004] QCA 419 at [86] that “one might question how helpful to a jury is the expression ‘make-weight’. It is not in common use and has an unattractive flavour of antiquar…
R v Nicholson; ex parte DPP (Cth) [2004] QCA 393
Citation 3 (Para 1)

…This Court had earlier expressed conclusions to the same effect in R v Nicholson; ex parte DPP (Cth) [2004] QCA 393 as those put so clearly by White J in R v DAH. In the instant appeal, the learned trial judge gave all of those directions to the jury, albeit not when giving the Azzopardi or micro- Weissensteiner…
Smith v The Queen [2001] HCA 50
Citation 4 (Para 1)

…captured on the photograph was Mr Surrey was not admissible. That inadmissibility was established by the decision of the High Court in Smith v R [2001] HCA 50; (2001) 206 CLR 650 at [10], [11], and [58]; those judgments emphasise, as does the judgment of this Court in R v Griffith [1997] 2 Qd R 524, that the co…
Azzopardi v the Queen [2001] HCA 25
Citation 5 (Para 1)

…learned judge gave that description at AR 620, referring thereby to the judgments in Weissensteiner v R (1993) 178 CLR 217 and Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 [2]The reference is to Edwards v R (1993) 178 CLR 193…
Zoneff v The Queen [2000] HCA 28
Citation 6 (Para 1)

…ficiency was helpfully remedied in a supplementary written outline by Ms Bain, counsel for the respondent. [12]Mr Byrne QC referred to Zoneff v R (2000) 200 CLR 234 at [17] and Edwards v R (1993) 178 CLR 193 at 210 and 211…
Weissensteiner v The Queen [1993] HCA 65
Citation 7 (Para 1)

…in his defence on all counts. [1]The learned judge gave that description at AR 620, referring thereby to the judgments in Weissensteiner v R (1993) 178 CLR 217 and Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 [2]The reference is to Edwards v R (1993) 178 CLR 193…
Edwards v The Queen [1993] HCA 63
Citation 8 (Para 1)

…the judgments in Weissensteiner v R (1993) 178 CLR 217 and Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 [2]The reference is to Edwards v R (1993) 178 CLR 193…
Jones v Dunkel [1959] HCA 8
Citation 9

…[14](1959) 101 CLR 298…
Peacock v The King [1911] HCA 66
Citation 10 (Para 1)

…y parts and belongings, and his disposing of them. I acknowledge that that is not how the law has developed to date in this area. [9] Peacock v R (1911) 13 CLR 619 at 634 and 661. In that case Mr Peacock made a statement from the dock which the High Court said the jurors were to consider on its merits (at 641, 674)…
[1971] AC 29 [1971] AC 29
Citation 11

…[4]Their Honours cited Ludlow v Metropolitan Police Commissioner [1971] AC 29, 39; R v Kray [1970] 1 QB 125, 130-131; R v Clayton-Wright [1948] 2 All ER 763, 765; R v Cranston [1988] 1 Qd R 159, 164…
[1970] 1 QB 125 [1970] 1 QB 125
Citation 12

…[4]Their Honours cited Ludlow v Metropolitan Police Commissioner [1971] AC 29, 39; R v Kray [1970] 1 QB 125, 130-131; R v Clayton-Wright [1948] 2 All ER 763, 765; R v Cranston [1988] 1 Qd R 159, 164…

Legislation Cited

No legislation cited in this judgment.

CITATION:	R v Surrey [2005] QCA 4
PARTIES:	R v SURREY, John Arthur Powys (appellant)
FILE NO/S:	CA No 324 of 2003 SC No 352 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2004
JUDGES:	McPherson and Jerrard JJA and Jones J Separate reasons for judgement of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – JOINT TRIAL OF SEVERAL COUNTS – where appellant convicted of two counts of murder and one count of interfering with a corpse – where all counts tried on same indictment – where there was no application by counsel for reconsideration of the joinder – whether trial judge should have made a late order separating the trials to avoid a miscarriage of justice resulting from the combination of directions given CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER THE JURY WOULD HAVE RETURNED THE SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where trial judge gave “micro-Weissensteiner” direction on the appellant’s silence in court – whether such a direction caused a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER THE JURY WOULD HAVE RETURNED THE SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where trial judge gave Edwards direction regarding the jury’s conclusion on whether deliberate lies had been told which showed a consciousness of guilt – whether such a direction was defective – whether such a direction caused a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER THE JURY WOULD HAVE RETURNED THE SAME VERDICT – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where witness gave identification evidence regarding security photographs – whether the witness’ opinion that the person in the photograph was the appellant was inadmissible as evidence Criminal Code 1899 (Qld), s 567 Azzopardi v R (2001) 205 CLR 50, applied Edwards v R (1993) 178 CLR 193, applied Peacock v R (1911) 13 CLR 619, cited R v Collins; ex parte Attorney-General [1996] 1 Qd R 631, followed R v Cranston [1988] 1 Qd R 159, cited R v DAH [2004] QCA 419; CA No 153 of 2004, 5 November 2004, followed R v Griffith [1997] 2 Qd R 524, cited R v Nicholson; ex parte DPP (Cth); R v Hyde-Harris; ex parte DPP (Cth) [2004] QCA 393; CA No 214 of 2004, CA No 215 of 2004, CA No 225 of 2004, CA…