R v Yanner - [1997] QCA 416

IN THE COURT OF APPEAL	[1997] QCA 416
SUPREME COURT OF QUEENSLAND

C.A. No. 324 of 1997

Brisbane

[R. v. Yanner]

THE QUEEN

MURRANDOO BULANYI MUNGABAYI YANNER

Appellant

Pincus J.A. de Jersey J. Muir J.

Judgment delivered 21 November 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - unlawful assembly - application for change of venue refused - whether there was an error in principle in the exercise of judicial discretion - whether there would have been a miscarriage of justice for purposes of s.668(1) Criminal Code.

Counsel:	Mr A. Vasta Q.C. for the appellant. Mr M.C. Chowdhury for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	3 November 1997
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21 November 1997

The appellant was convicted, after a trial in the District Court at Mt Isa, of the offence of unlawful assembly defined by s. 61 of the Criminal Code. An appeal has been brought against the conviction on a number of grounds, of which the only one pressed is the first, "[t]he Learned Judge erred in not allowing a change of venue". An application was made by the appellant personally, at the inception of the trial, to have the venue changed on the ground of local prejudice against the appellant and that was refused.

The appeal is not against the refusal of the application for a change of venue, but against conviction. Under s. 668E(1) of the Code, on an appeal against conviction the Court "shall allow the appeal if it is of opinion that . . . on any ground whatsoever there was a miscarriage of justice . . . ". In Callaghan [1966] V.R. 17, one of the grounds on which leave to appeal against conviction was sought was that the judge had wrongly refused an application for a separate trial and, following authority, that was reduced to the question whether there was a miscarriage of justice (21). In Dietrich (1992) 177 C.L.R. 292, the issue raised was whether the trial judge should have proceeded with the trial or put it off on the ground that Dietrich was not legally represented; the conviction was quashed. Mason CJ and McHugh J explained that:

" . . . the question before this Court is not merely whether or not an adjournment should have been granted but whether the applicant’s conviction should be set aside ‘on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice’, provided that the conviction will stand if ‘no substantial miscarriage of justice has actually occurred’ ". (312, 313)

The quotation is from s. 568 of the Crimes Act 1958 (Vict). A similar approach was made by Dawson J (340, 341).

The primary judge in refusing to grant a…

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 Yanner

Details

AGLC: R v Yanner [1997] QCA 416
Case: [1997] QCA 416
Decision Date: 21/11/1997

CaseChat Overview and Summary

In the Supreme Court of Queensland, the appellant, Murrandoo Bulanyi Mungabayi Yanner, was convicted of the offence of unlawful assembly, as defined under section 61 of the Criminal Code. The appellant appealed against his conviction, arguing that the trial judge had erred in not allowing a change of venue. The Court of Appeal dismissed the appeal against conviction, finding no miscarriage of justice. The appeal centred around the trial judge's refusal to change the venue from Mt Isa to another location. The appellant argued that local prejudice against him, due to his role in the Century Zinc mining project negotiations and his public profile, would prevent him from receiving a fair trial. The Court of Appeal found that the trial judge's decision to deny the change of venue was based on relevant considerations, such as the practicalities of changing the venue and the nature of the offence. The Court held that the trial judge's decision did not amount to a miscarriage of justice and that the appeal against conviction should be dismissed.

Orders