R v Wright - [2012] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wright [2012] QCA 212

PARTIES:

R
v
WRIGHT, Craig Anthony
(appellant)

FILE NO/S:

CA No 317 of 2011
SC No 432 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2012

JUDGES:

Chief Justice, Holmes and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   Convictions on Counts 1, 2 and 3 are set aside.

3.   Order a new trial on Counts 1, 2 and 3.

4.   The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the appellant was convicted after a five day trial – where on the fourth day of the trial the appellant’s counsel and instructing solicitors sought, and were granted, leave to withdraw – where the appellant requested the opportunity to instruct a previous solicitor to continue with the trial – where the previous solicitor was located within the court precinct and requested a five minute adjournment to obtain instructions from the appellant – where the judge below refused to adjourn and directed the solicitor to the dock where the appellant was seated if he wished to speak with him – where the solicitor then informed the learned judge that he would not be acting for the appellant – where the trial continued with the appellant representing himself – whether the refusal of an adjournment resulted in prejudice to the appellant’s defence at trial amounting to a miscarriage of justice

Evidence Act 1995 (Cth)

R v McGill [1967] VR 683; [1967] VicRp 79, considered
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, considered

COUNSEL:

D Imlah for the appellant/applicant
G R Rice SC for the respondent

SOLICITORS:

No appearance for the appellant/applicant
Director of Public Prosecutions (Commonwealth) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Gotterson JA. I agree with the orders proposed by His Honour, and with his reasons.

HOLMES JA: I agree with the reasons of Gotterson JA and the orders he proposes.

GOTTERSON JA: The appellant, Craig Anthony Wright, was tried in the Supreme Court on the following three counts:

· Count 1 – an offence against ss 11.1 and 307.6(1) of the Criminal Code Act 1995 (Commonwealth Code) of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely, amphetamine;

· Count 2 – an offence against s 307.6(1) of the Commonwealth Code of possessing a marketable quantity of an unlawfully imported border controlled drug, namely, amphetamine;

· Count 3 – an offence against s 9(b) of the Drugs Misuse Act 1986 of unlawfully having possession of the dangerous drug, lysergide, in a quantity that exceeded 0.004 grams.

All offences were alleged to…

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.

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Details

Case: [2012] QCA 212
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the case of R v Wright, the appellant contested his conviction on three counts following a five-day trial. The crux of the appeal centred on whether the refusal of an adjournment by the trial judge during the trial prejudiced the appellant's defence, leading to a miscarriage of justice. The appellant had sought to engage a previous solicitor to continue representing him after his current counsel and solicitors withdrew, but the judge denied the requested adjournment, compelling the appellant to represent himself for the remainder of the trial.

The legal issues before the court involved the impact of the refusal to adjourn on the fairness of the trial, and whether there was sufficient evidence to support the jury's verdicts on the counts of unlawful importation of amphetamines. The appellant argued that the absence of evidence regarding ACS seals on the package in question opened up a rational hypothesis of interference by a third party, necessitating appropriate directions on circumstantial evidence which were allegedly not given. Additionally, the appellant challenged the sufficiency of the evidence regarding the unlawful importation of the specific quantities of amphetamines in question.

The court determined that the refusal of the adjournment did not result in prejudice to the appellant's defence, as the appellant had not demonstrated that the denial prevented him from effectively instructing his previous solicitor. The court also found that the absence of evidence regarding ACS seals did not necessitate any particular directions to the jury, as the prosecution's case was not circumstantial but rather based on detailed direct evidence. Regarding the sufficiency of evidence for unlawful importation, the court concluded that there was sufficient evidence for the jury to infer the unlawful importation of the specified quantities of amphetamines. However, due to errors in the handling of the trial, the appeal was allowed, and the convictions on Counts 1, 2, and 3 were set aside, with a new trial ordered on these counts. The application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

1. The appeal is allowed.

2. Convictions on Counts 1, 2 and 3 are set aside.

3. Order a new trial on Counts 1, 2 and 3.

4. The application for leave to appeal against sentence is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Continuity evidence: Grounds 1 and 2(ii) relate to continuity evidence concerning drug testing of the contents of the package. The aspect of the appellant’s factual summary which the respondent did not accept is an assertion that Farrugia did not see ACS seals on it. In so far as that assertion would imply that there was evidence that she did not see such stickers, it is incorrect. The true position is that she gave no evidence, either in-chief or in cross-examination, about ACS seals. Thus there was, at most, an absence of evidence that when she unwrapped the package she observed ACS seals on it. The appellant characterised the respondent’s case on continuity as a circumstantial one. Upon that footing, it was submitted, that the absence of evidence about the ACS seals left open a rational hypothesis consistent with innocence that the package had been disturbed or interfered with by some third party between its handling by Button and Farrugia. It was further submitted that directions appropriate to circumstantial evidence ought to have been given and that the fact that they were not given rendered the jury verdicts unsafe and unsatisfactory. The hypothesis proposed by the appellant is unrealistic and improbable. It would require for its validity an acceptance of the extremely unlikely circumstance that some third party had removed innocuous material from the package and replaced it with amphetamines, all with the intention of setting up someone else quite unknown to them. However, the basic flaw in these submissions lies in a mischaracterisation of the respondent’s case as a circumstantial one. Detailed direct evidence of all the steps in handling the package was given. The jury was not required to draw an inference of continuity from circumstances. No directions as to circumstantial evidence were required to be given. This ground of appeal could not succeed. Unlawful importation: Ground 3, and Ground 2(ii)(d) which is substantially the same as it, relate only to the unlawful importation element of Count 2. The appellant submits that there was no, or insufficient, evidence upon which the jury could have been satisfied that the quantity of amphetamine the subject of that count was unlawfully imported. There was no evidence of an admission by the appellant that the quantity in question had been imported. The appellant submitted that the evidence that the quantity of amphetamine the subject of Count 1 had been imported, was insufficient for the jury to make a finding as to the provenance of the quantity of amphetamine the subject of Count 2. The respondent’s submission in answer is based upon other evidence which, the respondent contended, would allow the inference to be drawn. In the interview with Grant, the appellant had described the quantity of amphetamine located at his residence as being the remnant of a one kilogram quantity from another package collected by him about a week earlier.[8] The appellant gave evidence that there had been one prior package collection by him from his sister’s house at Chancellor Park.[9] Additionally, there was the evidence to which reference has been made in these reasons concerning Maurice and his concern that the appellant was “not going to stay on board”. That, the respondent submits, must have been understood by the jury as referring to a concern on the part of those involved in importing the drugs that the appellant might not continue in the role of a collector of packages. [8]AB 776.[9]AB 438 LL20-30.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Wright [2012] QCA 212
PARTIES:	R v WRIGHT, Craig Anthony (appellant)
FILE NO/S:	CA No 317 of 2011 SC No 432 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	14 June 2012
JUDGES:	Chief Justice, Holmes and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. Convictions on Counts 1, 2 and 3 are set aside. 3. Order a new trial on Counts 1, 2 and 3. 4. The application for leave to appeal against sentence is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – OTHER MATTERS – where the appellant was convicted after a five day trial – where on the fourth day of the trial the appellant’s counsel and instructing solicitors sought, and were granted, leave to withdraw – where the appellant requested the opportunity to instruct a previous solicitor to continue with the trial – where the previous solicitor was located within the court precinct and requested a five minute adjournment to obtain instructions from the appellant – where the judge below refused to adjourn and directed the solicitor to the dock where the appellant was seated if he wished to speak with him – where the solicitor then informed the learned judge that he would not be acting for the appellant – where the trial continued with the appellant representing himself – whether the refusal of an adjournment resulted in prejudice to the appellant’s defence at trial amounting to a miscarriage of justice Evidence Act 1995 (Cth) R v McGill [1967] VR 683; [1967] VicRp 79, considered Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, considered
COUNSEL:	D Imlah for the appellant/applicant G R Rice SC for the respondent
SOLICITORS:	No appearance for the appellant/applicant Director of Public Prosecutions (Commonwealth) for the respondent