R v White

Case [2023] QCA 66

SUPREME COURT OF QUEENSLAND

CITATION:

R v White [2023] QCA 66

PARTIES:

R
v
WHITE, Adam Christopher
(appellant)

FILE NO/S:

CA No 69 of 2020
DC No 2380 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 4 March 2020; Date of Sentence: 13 March 2020 (Richards DCJ)

DELIVERED ON:

12 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2022

JUDGES:

Mullins P, McMurdo and Bond JJA

ORDERS:

1.   Appeal allowed.

2.   Set aside convictions on counts 1, 2, 4 and 5.

3.   New trial ordered on counts 1, 2, 4 and 5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was convicted of three counts of extortion (counts 1, 2 and 4) and one count of wilful damage (count 5) – where counts 1, 2 and 4 were distinguished by the identity of the person against whom the demand was made and the detriment threatened – where the prosecution case at trial on the extortion counts was conducted such that each count relied on sets of demands and threats capable of being the subject of more than one offence – where there was a miscarriage of justice because counts 1, 2 and 4 were bad for duplicity – where the unfairness of the trial on the extortion counts tainted the directions given on count 5 – where there was a miscarriage of justice because of the trial judge’s directions on count 5

Criminal Code (Qld), s 7, s 8, s 415, s 567, s 668E

L v Western Australia (2016) 49 WAR 545; [2016] WASCA 101, cited
R v Quagliata[2019] QCA 45, cited
Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22, cited
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, cited

COUNSEL:

M J Copley KC, with A J Kimmins and R W Haddrick, for the appellant
C W Wallis for the respondent

SOLICITORS:

Fisher Dore for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS P:  On 4 March 2020 Mr White was convicted after trial of three counts of extortion (counts 1, 2 and 4) and one count of wilful damage (count 5).  He went to trial with his co-accused Mr Davies who was also convicted of the same counts.

  2. Mr White appeals against the convictions on counts 1, 2 and 4 on the ground that a miscarriage of justice occurred, because the counts of extortion were bad for duplicity. He appeals against the conviction on count 5 on the ground that a miscarriage of justice occurred because the jury was erroneously directed about criminal responsibility pursuant to s 8 of the Criminal Code (Qld).

    Extortion counts

  3. The allegation in count 1 was that, in contravention of s 415(1)(a)(i) and (b) of the Code, between 24 April 2014 and 24…

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Details
AGLC
R v White [2023] QCA 66
Case
[2023] QCA 66
Decision Date

CaseChat Overview and Summary

In the case of R v White, the appellant contested his conviction on three counts of extortion (counts 1, 2 and 4) and one count of wilful damage (count 5). The appeal against conviction was based on the assertion that there was a miscarriage of justice due to the nature of the trial process. The primary issues before the court were whether the trial exhibited procedural errors, specifically concerning the duplicity of the extortion counts, and whether these errors tainted the trial of count 5, leading to an unfair trial on that count as well.

The court found that the prosecution's case on the extortion counts was fundamentally flawed due to duplicity. Each of counts 1, 2 and 4 involved distinct demands and threats, which could have been charged as separate offences. The court ruled that these counts were bad for duplicity, as they amalgamated multiple offences into single counts, thereby compromising the fairness of the trial. Additionally, the court noted that the unfairness of the trial on the extortion counts also tainted the directions given on count 5, leading to a miscarriage of justice on that count as well.

In light of the findings, the appeal was allowed, and the convictions on counts 1, 2, 4 and 5 were set aside. The court ordered a new trial for these counts, recognising that the procedural errors had significantly affected the outcome of the trial and thus warranted a retrial to ensure a fair process.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside convictions on counts 1, 2, 4 and 5.

3. New trial ordered on counts 1, 2, 4 and 5.

Background

Background to the litigation

Before the jury returned their verdicts, the trial judge had referred Quagliata to the prosecutor and trial counsel when working out the response to a jury question seeking the definition or clarification of “joint criminal enterprise”. The redirection that was given explained that it had been used as a shorthand way of defining the prosecution case that all three co-offenders were principal offenders in the crime of extortion. There was no challenge at the trial or on the appeal to the use that had been made by the prosecutor throughout the trial of joint criminal enterprise as one way to describe the criminal responsibility of Mr White for each of the counts and the adoption of that description by the trial judge at various stages of the summing up until the redirection was given. There was also no challenge on the appeal to the directions given by the trial judge in respect of s 7(1)(a) of the Code to the extent that the directions may not have complied with O’Dea v Western Australia (2022) 273 CLR 315 at [30] and [67]‑[68].Summary of the relevant facts It is necessary to set out a summary of sufficient facts for the purpose of dealing with the issue of duplicity in respect of the extortion charges. Mr Kaese, Mr Tuckerman, Mr Levai and Mr Askew who gave evidence at the trial were at, or in the vicinity of, the front yard of Mr Bougoure’s house in April 2014 when Mr Bougoure was assaulted (the incident). The visit to Mr Bougoure’s house had commenced from Mr Kaese’s residence. About a week later, Mr Askew exchanged messages with Mr White which resulted in Mr White’s assertion that he needed to see Mr Askew about an incident in which four or five persons went to Mr Bougoure’s house and assaulted Mr Bougoure with baseball bats and knuckle dusters. Mr White described it as a “dog act” and invited Mr Askew around to his house to discuss it. Mr Askew went to Mr White’s house. Mr White repeated the description of the event and said that he wanted (or Mr Bougoure wanted) $5,000 which was $1,000 from each participant on the basis there were five participants and the money was to be paid within the week. If it was not paid within the week, Mr White said “15 c**ts were going to run through [Mr Kaese’s house]” and they would do “whatever they wanted to do until they felt satisfied”. This demand made directly by Mr White in person to Mr Askew will be referred to as “the first demand”. It encompassed both the demand and threat to Mr Kaese. At most, it was a demand only and not a threat in respect of Mr Tuckerman and Mr Askew as members of the group present at the incident for $1,000 each, as there was no evidence of any detriment threatened by Mr White in that conversation to either Mr Tuckerman or Mr Askew as members of Mr Kaese’s group. Mr Askew said in cross-examination that he was never threatened personally by Mr White in this conversation and there was no threat to him. According to Mr Askew’s evidence, Mr Kaese had gone overseas within a couple of weeks of this conversation between Mr White and Mr Askew.

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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