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Anderson v The Queen

Anderson v The Queen

Case [2019] NSWCCA 256 30 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Anderson v R [2019] NSWCCA 256
Hearing dates: 9 October 2019
Date of orders: 30 October 2019
Decision date: 30 October 2019
Before: Macfarlan JA at [1];
Johnson J at [41];
Cavanagh J at [42]
Decision:
The application for an extension of time is refused.

Catchwords: CRIME – appeal – application for extension of time in which to appeal – merits of proposed conviction and sentence appeals – whether conviction unreasonable or cannot be supported having regard to the evidence – open to jury to conclude beyond reasonable doubt that applicant intended to cause victim grievous bodily harm – whether sentence unreasonable or plainly unjust – sentence within range of those open to primary judge to impose – application refused
Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(b), 35(1), 148
Criminal Appeal Act 1912 (NSW), ss 6(1), 10(1)(b)
Criminal Appeal Rules (NSW), r 3A
Cases Cited: AM v The Queen [2012] NSWCCA 203; (2012) 225 A Crim R 481
Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16
Kaddour v R [2019] NSWCCA 90
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Matzick v The Queen [2007] NSWCCA 92
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
R v Birks (1990) 19 NSWLR 677
R v Mitchell [2007] NSWCCA 96; (2007) 177 A Crim R 94
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
Category: Principal judgment
Parties: Richard Anderson (Applicant)
Regina (Respondent)
Representation:
Counsel:
Self-represented Applicant
D Patch (Respondent)
Solicitors:
Self-represented Applicant
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/36977
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

11 November 2016

Before:

English DCJ

File Number(s):

2015/36977

Judgment

MACFARLAN JA: On 23 August 2016 the applicant was arraigned in the District Court on the following charges:

● Count 1: Cause grievous bodily harm to Alejandro Schon with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW).

● Count 2: Steal property in dwelling house, contrary to s 148 of the Crimes Act.

After pleading not guilty to Count 1 and guilty to Count 2, the applicant was tried before English DCJ and a jury on Count 1. On 26 August 2016 the jury returned a verdict of guilty on that count.
Her Honour sentenced the applicant on 11 November 2016. In respect of Count 1 he was sentenced to a total term of imprisonment of 15 years commencing on 5 February 2015 and expiring on 4 February 2030, including a non-parole period of 11 years and 3 months commencing on 5 February 2015 and expiring on 4 May 2026. In respect of Count 2, he was sentenced to a fixed term of imprisonment of 15 months commencing on 5 February 2015 and expiring…

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 Anderson v The Queen

Details

AGLC: Anderson v The Queen [2019] NSWCCA 256
Case: [2019] NSWCCA 256
Decision Date: 30 October 2019

CaseChat Overview and Summary

The case of Anderson v The Queen involved an appeal by the applicant against his conviction and sentence, with an additional application for an extension of time to appeal. The applicant had been convicted and sentenced for causing grievous bodily harm to the victim. The High Court of Australia was tasked with considering the merits of the proposed appeals and the application for an extension of time.

The legal issues that the court needed to decide were whether the conviction was unreasonable or could not be supported by the evidence, and whether the sentence was unreasonable or plainly unjust. Specifically, the court had to determine if it was open to the jury to conclude beyond reasonable doubt that the applicant intended to cause the victim grievous bodily harm. Additionally, the court had to assess whether the sentence was within the range of those that the primary judge could impose and if it was unreasonable or plainly unjust.

The court found that the conviction was open to the jury based on the evidence presented, and therefore, the conviction was not unreasonable. Regarding the sentence, the court determined that it fell within the range of penalties that the primary judge could impose. Consequently, the sentence was not deemed unreasonable or plainly unjust. As a result, the application for an extension of time to appeal was refused.

The final orders of the court were to dismiss the application for an extension of time and to refuse the proposed appeals against both the conviction and the sentence.

Orders