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Anderson v The Queen

Anderson v The Queen

Case [2010] NSWCCA 130 23 June 2010

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Reported Decision: 202 A Crim R 68

New South Wales

Court of Criminal Appeal

CITATION: Anderson v R [2010] NSWCCA 130
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 June 2010

JUDGMENT DATE:
23 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Hislop J at 65

DECISION: Grant leave to appeal against conviction but dismiss the appeal.
Grant an extension of time within which to seek leave to appeal against sentence.
Grant leave to appeal against sentence but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - conspiracy to import commercial quantity of cocaine - inadmissible material inadvertently provided to jury - whether trial judge erred in refusing to discharge jury - complaint about Crown Prosecutor's address - whether trial judge erred in refusing to discharge jury - CRIMINAL LAW - appeal against sentence - consideration of "fresh evidence" of significant ill-health

LEGISLATION CITED: Crimes Act 1914 (C'th)
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Anastasiou v R [2010] NSWCCA 100
Barton v Regina [2009] NSWCCA 164
Causevic v R [2008] NSWCCA 238
Clark v R [2010] NSWCCA 94
GDD v R; NJC v R [2010] NSWCCA 62
Goebel-McGregor [2006] NSWCCA 390
Holyoak v R (1995) 82 A Crim R 502
John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344
Iglesias v R [2006] NSWCCA 26
Kanaan & Others v Regina [2006] NSWCCA 109
R v Domican (No3) (1990) 46 A Crim R 408
R v Goodwin (1990) 51 A Crim R 328
R v Munday (1981) 2 NSWLR 177
R v Shaw (1917) 34 WN (NSW) 150
R v Starke (1992) 13 Crim App R 548
RNM v Regina [2006] NSWCCA 375
Springer v The Queen (2007) 177 A Crim R 13
The Queen v Gilbert (2000) 201 CLR 414

PARTIES: John David Anderson
Regina

FILE NUMBER(S): CCA 2007/10578

COUNSEL: CT Loukas/D Hughes (Appellant)
W Roser SC (Crown) (Respondent)

SOLICITORS: S O'Connor (Solicitor for Legal Aid Commission of NSW) (Appellant)
(Commonwealth Director of Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/10578

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

LOWER COURT DATE OF DECISION: 27 November 2008

2007/10578

McCLELLAN CJ at CL
BUDDIN J
HISLOP J
WEDNESDAY 23 JUNE 2010

JOHN DAVID ANDERSON v REGINA

Judgment

: I agree with Buddin J.

Introduction

John David Anderson (whom I shall refer to as the appellant) was convicted after a trial in the District Court of conspiring with his son, Michael David Anderson, and others between 7 June 2006 and about 24 October 2006 to import a commercial quantity of a border controlled drug, namely cocaine. On 27 November 2008 he was sentenced to 18 years imprisonment to date from 25 October 2006 with a non-parole period of 11 years. He will accordingly be eligible for release to parole on 24 October 2017. The applicant seeks leave to appeal against his conviction and…

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 [2010] NSWCCA 130
Case: [2010] NSWCCA 130
Decision Date: 23 June 2010

CaseChat Overview and Summary

The defendant, Anderson, appealed both his conviction and sentence in relation to his involvement in a conspiracy to import a commercial quantity of cocaine into Australia. The case was heard in the High Court of Australia. The primary legal issue revolved around whether the trial judge erred in not discharging the jury due to inadmissible material inadvertently provided to them, and whether the trial judge should have discharged the jury following a complaint about the Crown Prosecutor's address to the jury. Additionally, the appeal challenged the sentence on the basis of fresh evidence of significant ill-health, which was not considered at the original sentencing hearing.

The High Court held that the trial judge did not err in not discharging the jury, as the inadmissible material did not significantly prejudice the defendant's case. The Court found that the material was not central to the evidence, and the jury was instructed to disregard it. Regarding the Crown Prosecutor's address, the Court determined that the trial judge appropriately exercised their discretion in not discharging the jury, as the remarks were not so inflammatory as to warrant a mistrial. The Court also considered the fresh evidence of significant ill-health, which was found to be relevant to the defendant's sentence. The Court found that the trial judge should have taken this evidence into account when determining the appropriate sentence.

The High Court ultimately upheld the conviction but reduced the sentence due to the trial judge's failure to consider the fresh evidence of significant ill-health. The Court found that the defendant's health condition had a substantial impact on his ability to carry out the sentence, and the original sentence was therefore considered to be manifestly excessive. The appeal was partially successful, resulting in a reduced sentence for the defendant.

Orders