Quaid v The Queen

(2011) 210 A Crim R 374; [2011] WASCA 141

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Conspiracy
3. › Conspiracy to traffic in controlled drug
4. › Fault elements applicable to conspiracy charge
5. › Whether trial judge erred in directing jury about recklessness in relation to substantive offence of trafficking
6. › Whether recklessness as fault element of substantive offence relevant to conspiracy charge
7. › Criminal Code Act 1995 (Cth), ss 11.5(1), 11.5(2), 302.2(1), 302.2(2)
1. Criminal Law
2. › Appeal
3. › Miscarriage of justice
4. › Proviso
5. › Whether no substantial miscarriage of justice
6. › Whether misdirection on fault element precluded application of proviso
7. › Whether misdirection so fundamental as to exclude proviso
8. › Whether appellate court satisfied beyond reasonable doubt of guilt
9. › Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
1. Criminal Law
2. › Appeal
3. › Miscarriage of justice
4. › Whether convicted of offence not known to law
5. › Whether misdirection by trial judge converts offence in indictment to offence unknown to law

Quick Take

On a charge of conspiracy to commit an offence under s 11.5 of the Criminal Code (Cth), the trial judge must not direct the jury about the fault elements applicable to the substantive offence; the fault elements for conspiracy (intention to enter the agreement and intention that the offence be committed) subsume any lesser fault element such as recklessness that applies to the substantive offence. However, an unnecessary direction about the fault elements of the substantive offence will not necessarily constitute a substantial miscarriage of justice if the trial judge clearly confines the direction and expressly instructs the jury that recklessness is irrelevant to the conspiracy elements.