Court of Appeal

R v Pham [2017] QCA 043 (15/304) Margaret McMurdo P and Morrison and Philippides JJA 21 March 2017

Full-text: QCA17-043.pdf

Catchwords

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin – where the drugs were concealed inside two wooden altars – where the appellant contends that the evidence at his trial was insufficient to support an inference beyond reasonable doubt that he knew or believed the altars contained a border controlled drug rather than some other illicit goods like cigarettes or tobacco – whether a verdict of guilty was reasonably open to the jury on the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant’s co-defendants were represented by the same firm of solicitors – where the appellant did not give or call any evidence at trial and relied solely upon evidence given by a co-defendant – where parts of that evidence inculpated him – where the appellant asserts that he was not advised of the content of that evidence prior to trial – where the appellant contends that his solicitors had an actual or apparent conflict of duties and that as a result he was deprived of a fair trial – where the appellant seeks leave to adduce evidence regarding the conduct of his case by his former solicitors – where the appellant did not provide any evidence that he would have conducted his trial differently had he known the details of his co-defendant’s evidence in advance – whether leave to adduce evidence should be granted – whether a fair-minded observer would entertain a reasonable suspicion that justice had miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin under s 307.5 Criminal Code (Cth) – where the appellant contends that on the evidence the jury could have inferred that he did not know the altars and their contents were imported – where the appellant argues that the jury should have been directed to consider the defence under s 307.5(4) – where at trial defence counsel did not ask for that defence to be left to the jury – whether the defence under s 307.5(4) was raised on the evidence – whether the trial judge erred in not directing the jury to consider that defence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was convicted by jury of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin under s 307.5 Criminal Code (Cth) – where the trial judge prepared a question trail suggesting a possible course of deliberations for the jury – where at trial defence counsel made no complaint about the content of the question trail – where the appellant argues that the question trail and subsequent jury directions constitute a misdirection to the jury – whether the question trail misdirected the jury