R v Upson - [2011] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION:

R v Upson [2011] QCA 196

PARTIES:

R
v
UPSON, Robert James
(appellant/applicant)

FILE NO/S:

CA No 24 of 2010
SC No 457 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2011

JUDGES:

Fraser and White JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal is dismissed;

2.    The applications for leave to adduce new evidence in the appeal and in the application for leave to appeal against sentence, and to amend the application for leave to appeal against sentence, are refused;

3.    The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where the appellant was convicted of trafficking in cannabis sativa – where the Crown led evidence of the forensic analysis of a computer tower located at the appellant’s residence which had been used to access material connected with cannabis – where the appellant’s son, who pleaded guilty to producing cannabis, had resided with the appellant – where the appellant was overseas on most of the dates on which the material was accessed – where the appellant argued that the evidence should not have been admitted because its prejudicial effect outweighed its probative value – where defence counsel did not object to its admission, and in fact relied upon it in the appellant’s defence – where the failure to object was a rational forensic decision – whether the evidence ought to have been excluded

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where the appellant owned two parcels of land and was observed by a neighbour to travel between them – where a crop of cannabis was located on one parcel of land which was occupied by Mr Mackay, who had pleaded guilty to producing cannabis – where the crop had a sophisticated system of irrigation and “jiffy pellets” had been used – where evidence was led of the location of jiffy pellets and similar irrigation equipment on the second parcel of land – where no cannabis crop was located on the second parcel of land – where the jiffy pellets and irrigation equipment are commonly used in farming and the investigating officer did not make enquiries as to whether the appellant sold produce to legitimate marketplaces in the area – where the appellant argued the evidence was equivocal, of dubious probative value, and highly prejudicial – whether the evidence ought to have been excluded

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was asked by a police officer to identify items of equipment which he owned…

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 Upson

Details

AGLC: R v Upson [2011] QCA 196
Case: [2011] QCA 196
Decision Date: 16 August 2011

CaseChat Overview and Summary

The appellant, Upson, was convicted of trafficking in cannabis sativa and appealed against his conviction and sentence. The appeal centred on several issues, including the admissibility of certain evidence, alleged misdirections by the trial judge, the conduct of defence counsel, and the sentence imposed. The court was asked to determine whether the trial judge erred in admitting certain evidence and whether this led to a miscarriage of justice. The court also needed to consider whether the trial judge gave adequate directions to the jury regarding circumstantial evidence and whether the sentence imposed was manifestly excessive.

The court found that the evidence in question, including the forensic analysis of a computer tower and the presence of jiffy pellets and irrigation equipment on the appellant’s land, was properly admitted as it had probative value and its prejudicial effect was not disproportionate. The court noted that defence counsel made a rational decision not to object to the evidence and even relied on it during the trial. The court further held that the trial judge’s directions to the jury regarding circumstantial evidence were sufficient. The court also rejected the appellant’s argument that defence counsel’s failure to call him to give evidence resulted in a miscarriage of justice, finding that the decision not to call evidence was a legitimate strategic choice that could have provided a forensic advantage. Finally, the court found that the sentence imposed was within the appropriate range and was not manifestly excessive.

The appeal was dismissed, and the applications for leave to adduce new evidence and to amend the application for leave to appeal against sentence were refused. The application for leave to appeal against sentence was also refused.

Orders

Orders of the court

1. The appeal is dismissed;

2. The applications for leave to adduce new evidence in the appeal and in the application for leave to appeal against sentence, and to amend the application for leave to appeal against sentence, are refused;

3. The application for leave to appeal against sentence is 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 Upson [2011] QCA 196
PARTIES:	R v UPSON, Robert James (appellant/applicant)
FILE NO/S:	CA No 24 of 2010 SC No 457 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2011
JUDGES:	Fraser and White JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed; 2. The applications for leave to adduce new evidence in the appeal and in the application for leave to appeal against sentence, and to amend the application for leave to appeal against sentence, are refused; 3. The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where the appellant was convicted of trafficking in cannabis sativa – where the Crown led evidence of the forensic analysis of a computer tower located at the appellant’s residence which had been used to access material connected with cannabis – where the appellant’s son, who pleaded guilty to producing cannabis, had resided with the appellant – where the appellant was overseas on most of the dates on which the material was accessed – where the appellant argued that the evidence should not have been admitted because its prejudicial effect outweighed its probative value – where defence counsel did not object to its admission, and in fact relied upon it in the appellant’s defence – where the failure to object was a rational forensic decision – whether the evidence ought to have been excluded CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – GENERALLY – where the appellant owned two parcels of land and was observed by a neighbour to travel between them – where a crop of cannabis was located on one parcel of land which was occupied by Mr Mackay, who had pleaded guilty to producing cannabis – where the crop had a sophisticated system of irrigation and “jiffy pellets” had been used – where evidence was led of the location of jiffy pellets and similar irrigation equipment on the second parcel of land – where no cannabis crop was located on the second parcel of land – where the jiffy pellets and irrigation equipment are commonly used in farming and the investigating officer did not make enquiries as to whether the appellant sold produce to legitimate marketplaces in the area – where the appellant argued the evidence was equivocal, of dubious probative value, and highly prejudicial – whether the evidence ought to have been excluded CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was asked by a police officer to identify items of equipment which he owned…