R v Tabe - [2003] QCA 356

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tabe [2003] QCA 356

PARTIES:

R
v
TABE, Graham Victor

(appellant)

FILE NO/S:

CA No 132 of 2003

SC No 35 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2003

JUDGES:

de Jersey CJ, Davies JA and Mackenzie J

Separate reasons for judgment 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 – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where appellant allegedly procured another person to take possession of methylamphetamine – where learned trial Judge directed that conviction of appellant of possession of methylamphetamine required merely knowledge that parcel contained something, regardless of nature of thing – whether Crown required to prove a more extensive mental element in case of accessory, rather than principal offender – whether learned trial Judge’s direction appropriate

Criminal Code 1899 (Qld), s 2, s 7(1)(b), s 7(1)(c), s 7(1)(d), s 7(4), s 8, s 9, s 10A, s 22, s 23, s 24, ch 5

Drugs Misuse Act 1986 (Qld), s 9, s 117(1), s 129(1)(c), s 129(1)(d), pt 2

R v B and P [1999] 1 Qd R 296, CA Nos 345 and 346 of 1997, 20 March 1998, applied
R v Barlow (1997) 188 CLR 1, distinguished

R v Beck [1990] 1 Qd R 30, applied

R v Bellino [2003] QCA 110; CA No 391 of 2002, 14 March 2003, distinguished
R v Clare [1994] 2 Qd R 619, considered
R v Jervis [1993] 1 Qd R 643, considered

R v Myles [1997] 1 Qd R 199, considered

COUNSEL:

G M McGuire for the appellant

M J Copley for the respondent

SOLICITORS:

Ryan and Bosscher for the appellant

Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: The appellant was convicted by a jury of possession on 19 November 2001 of a dangerous drug with a circumstance of aggravation (a quantity more than the prescribed amount).

The charge involved what was really a notional possession, in that the appellant aided, counselled or procured one Ms Briggs to collect a parcel containing methylamphetamine from a mail exchange, the parcel having previously been intercepted by the police and the drugs withdrawn. Accordingly, by the time of the intended collection of the parcel on 19 November, the date of the alleged offence, the drugs were not present within it. Section 117(1) of the Drugs Misuse Act does however deem someone attempting to commit a crime of this nature guilty of commission of the crime – hence the alleged liability of the appellant as accessory to the principal offence.

The factual situation advanced by the Crown was that Ms Briggs attempted to gain possession of a parcel containing the drugs, and that to aid her to that end on 19…

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 Tabe

Details

AGLC: R v Tabe [2003] QCA 356
Case: [2003] QCA 356
Decision Date: 22 August 2003

CaseChat Overview and Summary

In the case of R v Tabe, the appellant was convicted of procuring another person to take possession of methylamphetamine. The matter was heard on appeal by the High Court of Australia, which was required to determine whether there had been a miscarriage of justice due to the trial judge’s direction on the requisite mental element for conviction. The appellant argued that the trial judge’s direction, which allowed for conviction based on knowledge that a parcel contained something, regardless of its nature, was inappropriate when considering the role of an accessory rather than a principal offender. The court was tasked with examining whether the Crown needed to prove a more extensive mental element in cases involving accessories.

The court examined the principles of accessorial liability and the specific intent required for such a conviction. It considered whether the trial judge’s direction adequately reflected the distinction between the mental states of principal offenders and accessories. The court determined that the trial judge’s direction did not adequately address the nuances of accessorial liability, as it did not require proof of the specific intent to possess methylamphetamine, but rather any knowledge that the parcel contained something. This misdirection could have led to a miscarriage of justice by potentially convicting the appellant on insufficient grounds.

Ultimately, the High Court held that the trial judge’s direction was inappropriate in this context, as it did not align with the necessary mental element for an accessory to be convicted of possession of a prohibited drug. However, the court found that the error did not result in a miscarriage of justice, as the evidence overwhelmingly demonstrated the appellant’s knowledge and involvement in the drug possession. The appeal was dismissed, and the original conviction was upheld.

Orders

Orders of the court

Appeal dismissed

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 Tabe [2003] QCA 356
PARTIES:	R v TABE, Graham Victor (appellant)
FILE NO/S:	CA No 132 of 2003 SC No 35 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2003
JUDGES:	de Jersey CJ, Davies JA and Mackenzie J Separate reasons for judgment 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 – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – where appellant allegedly procured another person to take possession of methylamphetamine – where learned trial Judge directed that conviction of appellant of possession of methylamphetamine required merely knowledge that parcel contained something, regardless of nature of thing – whether Crown required to prove a more extensive mental element in case of accessory, rather than principal offender – whether learned trial Judge’s direction appropriate Criminal Code 1899 (Qld), s 2, s 7(1)(b), s 7(1)(c), s 7(1)(d), s 7(4), s 8, s 9, s 10A, s 22, s 23, s 24, ch 5 Drugs Misuse Act 1986 (Qld), s 9, s 117(1), s 129(1)(c), s 129(1)(d), pt 2 R v B and P [1999] 1 Qd R 296, CA Nos 345 and 346 of 1997, 20 March 1998, applied R v Barlow (1997) 188 CLR 1, distinguished R v Beck [1990] 1 Qd R 30, applied R v Bellino [2003] QCA 110; CA No 391 of 2002, 14 March 2003, distinguished R v Clare [1994] 2 Qd R 619, considered R v Jervis [1993] 1 Qd R 643, considered R v Myles [1997] 1 Qd R 199, considered
COUNSEL:	G M McGuire for the appellant M J Copley for the respondent
SOLICITORS:	Ryan and Bosscher for the appellant Director of Public Prosecutions (Queensland) for the respondent