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Badans v R

Badans v R

Case [2012] NSWCCA 97 17 May 2012

Intellectual Disability

Costs

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Badans v R [2012] NSWCCA 97
Hearing dates: 5 December 2011
Decision date: 17 May 2012
Before: Meagher JA at [1]
Hoeben J at [84]
Rothman J at [85]
Decision:
(1) Refuse leave to appeal against the conviction on grounds 1 and 2.
(2) Grant leave to appeal against the conviction on ground 3.
(3) Dismiss the appeal against conviction.
(4) Dismiss the appeal against sentence.
(5) Allow the appeal against the order for payment of Dr Nielssen's costs.
(6) Set aside the order made by the District Court on 24 June 2011 that the Crown pay the costs of calling Dr Nielssen in the sum of $1500.

Catchwords: CRIMINAL LAW - appeal - conviction - whether misdirections in summing up to jury - evidence - whether verdict unreasonable or unsupportable on evidence - Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b)
CRIMINAL LAW - appeal - sentencing - whether manifestly inadequate - standard non-parole period - consideration of Muldrock - significance of appellant's intellectual disability - Criminal Appeal Act 1912, s 5D(1)
CRIMINAL LAW - appeal - procedure - sentencing hearing - order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act - no direction in accordance with s 4(2)(a) that law of evidence applied - costs order set aside
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995
Cases Cited: Alseedi v R [2009] NSWCCA 185
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Dionnet v R [2009] NSWCCA 85
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
Engert v R (1995) 84 A Crim R 67
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
Kocer v R [2006] NSWCCA 328
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Matzick v R [2007] NSWCCA 92
McCartney v R [2009] NSWCCA 244
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197
O'Neil-Shaw v R [2010] NSWCCA 42
R v Achurch [2011] NSWCCA 186
R v Allpass (1993) 72 A Crim R 561
R v Fahda [1999] NSWCCA 267
R v Gilham [2007] NSWCCA 323; (2007) 73 NSWLR 308
R v Hemsley [2004] NSWCCA 228
R v Isaacs (1997) 41 NSWLR 374
R v Israil [2002] NSWCCA 255
R v Koloamatangi

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 Badans v R

Details

AGLC: Badans v R [2012] NSWCCA 97
Case: [2012] NSWCCA 97
Decision Date: 17 May 2012

CaseChat Overview and Summary

In the matter of Badans v R, the appellant sought to appeal his conviction and sentence imposed by the Supreme Court of Victoria. The dispute centred on the correctness of the jury's verdict, the adequacy of the sentence, and the imposition of costs on the appellant. The appellant argued that there were misdirections in the summing up to the jury, the verdict was unreasonable or unsupportable on the evidence, and the sentence was manifestly inadequate. The appeal was heard by the Court of Appeal in Victoria.

The legal issues before the Court of Appeal involved whether there were any misdirections in the summing up to the jury that affected the verdict. Additionally, the Court needed to consider whether the verdict was unreasonable or unsupportable on the evidence. The Court also needed to assess whether the sentence imposed was manifestly inadequate, taking into account the standard non-parole period, the appellant's intellectual disability, and the principles outlined in Muldrock. Finally, the Court had to determine whether the order for the Crown to pay the costs incurred by the appellant in calling an expert witness was appropriate, particularly in light of the absence of a direction in accordance with the Evidence Act.

The Court of Appeal found that there were no misdirections in the summing up to the jury that would warrant a new trial. The Court held that the verdict was not unreasonable or unsupportable on the evidence presented. Regarding the sentence, the Court considered the standard non-parole period and the appellant's intellectual disability, concluding that the sentence was not manifestly inadequate. However, the Court found that the order for the Crown to pay the costs incurred by the appellant in calling an expert witness was inappropriate as there was no direction in accordance with the Evidence Act. Consequently, the costs order was set aside.

Orders