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Ambury v The Queen

Ambury v The Queen

Case [2018] NSWCCA 275 3 December 2018

Appeal

Criminal Liability

Unreasonable Convictions

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ambury v R [2018] NSWCCA 275
Hearing dates: 24 September 2018
Decision date: 03 December 2018
Before: Macfarlan JA at [1];
Johnson J at [79];
N Adams J at [80]
Decision:
(1) Grant the appellant leave to appeal to the extent that he requires it.
(2) Dismiss the appeal.

Catchwords: CRIME – appeal against conviction – appellant convicted of three offences of participating as a client with a child under 18 years in an act of prostitution – appellant self-represented – 24 grounds of appeal, including whether appellant’s convictions should be set aside on the basis that they are “unreasonable, or cannot be supported, having regard to the evidence” – appeal dismissed
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, s 43
Crimes Act 1900 (NSW), ss 91C, 91D(1)(b)
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 20, 29, 293, 306I
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 123
Cases Cited: Bell v Regina [2017] NSWCCA 207
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Abusafiah (1991) 24 NSWLR 531
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Murray (1987) 11 NSWLR 12
RR v R [2011] NSWCCA 235; (2011) 216 A Crim R 489
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Category: Principal judgment
Parties: Michael Ambury (Appellant)
Regina (Respondent)
Representation:
Counsel:
Self-represented Appellant
T Smith (Respondent)
Solicitors:
Self-represented Appellant
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/214693
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 August 2015

Before:

Tupman DCJ

File Number(s):

2012/214693

Judgment

MACFARLAN JA: Following a judge alone trial in the District Court, the appellant, Mr Michael Ambury, was convicted of three offences under s 91D(1)(b) of the Crimes Act 1900 (NSW) of participating as a client with a child under 18 years in an act of prostitution. The trial judge (Tupman DCJ) had earlier directed a verdict of acquittal in respect of a fourth count charging a similar offence under the same provision of the Crimes Act. The appellant has completed serving the terms of imprisonment to which the trial judge sentenced him.
The appellant was represented by counsel before Tupman DCJ and at an earlier aborted trial before a judge (Lakatos SC DCJ) and a jury. He was self-represented in this Court.
The appellant has appealed, or sought leave to appeal, against his convictions on 25 grounds which are identified below. Some of the…

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 Ambury v The Queen

Details

AGLC: Ambury v The Queen [2018] NSWCCA 275
Case: [2018] NSWCCA 275
Decision Date: 03 December 2018

CaseChat Overview and Summary

Ambury appealed against his conviction for three counts of participating in an act of prostitution with a child under the age of 18. The appellant was self-represented and presented 24 grounds of appeal, contending that his convictions should be set aside as unreasonable or unsupported by the evidence. The appeal was dismissed by the court.

The central legal issues before the court were whether the evidence was sufficient to support the appellant's convictions and whether those convictions were unreasonable. The appellant argued that the prosecution failed to prove beyond reasonable doubt that he knew the child was under 18 and that he knew she was engaging in prostitution. The court had to consider whether the evidence was compelling enough to uphold the convictions and whether there was any basis to declare them unreasonable.

The court found that the evidence was sufficient to support the appellant's convictions. It concluded that the trial judge had correctly evaluated the evidence and that the convictions were not unreasonable. The court rejected the appellant's arguments, noting that the child's testimony, along with other evidence presented, was credible and sufficient to establish the necessary elements of the offence. The appeal was dismissed, and the convictions were upheld.

Orders