Beveridge v The Queen - [2011] NSWCCA 249

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Beveridge v R [2011] NSWCCA 249
Hearing dates: 20/09/11
Decision date: 25 November 2011
Before: Bathurst CJ at [1]
James J at [2]
Hoeben J at [31]
Decision:
Leave to appeal granted.
Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - no matter of principle
Legislation Cited: Drug Misuse and Trafficking Act
Crimes (Sentencing Procedure) Act
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Cases Cited: Vu v R [2006] NSWCCA 188
R v Sellars [2010] NSWCCA 133
R v McEvoy [2010] NSWCCA 110
R v Olbrich (1999) 199 CLR 270
R v Green and Quinn [2010] NSWCCA 313
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Category: Principal judgment
Parties: Adam Beveridge - Applicant
Regina - Crown
Representation: K Averre - Applicant
V Lydiard - Crown
Legal Aid Commission - Applicant
S Kavanagh - Solicitor for Public Prosecutions

File Number(s): 2010/12660
Decision under appeal

Date of Decision:

2010-06-15 00:00:00

Before:

Neilson DCJ

File Number(s):

2010/12660

Judgment

BATHURST CJ : I agree with the orders proposed by James J for the reasons given by him.

JAMES J : Adam Beveridge applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Neilson for an offence under s 23(2) of the Drug Misuse and Trafficking Act of cultivating not less than a commercial quantity of cannabis plants, to which he had pleaded guilty.

The number of cannabis plants cultivated by the applicant was 3,373, which is greater than the number of 1,000 plants specified in Schedule 1 to the Drug Misuse and Trafficking Act as being the large commercial quantity for cannabis plants. Accordingly, under s 33(3) of the Act the maximum penalty for the applicant's offence was a fine of 5,000 penalty units or imprisonment for 20 years or both. The sentencing judge imposed a sentence consisting of a non-parole period of three years six months and a balance of the term of two years six months.

Since 1 January 2008 there has been a standard non-parole period of 10 years for an offence under s 23(2) of the Act which involves not less than the large commercial quantity of prohibited plants. Previously, there had not been any standard non-parole period for the offence. The standard non-parole period applied to the applicant's offence.

The Facts of the Offence

An agreed set of facts was admitted in the proceedings on sentence and in his remarks on sentence the sentencing judge closely followed this agreed set of facts. I will now quote parts of his Honour's remarks.

"In December 2009 police commenced an investigation into the commercial cultivation of cannabis within the Chaelundi State Forest which is located 50 kilometres north west of Dorrigo. The police received information of a possible cannabis plantation at a certain place in the State Forest which was identified as being Lot 3 in Deposited Plan 753514. That is…

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 Beveridge v The Queen

Details

AGLC: Beveridge v The Queen [2011] NSWCCA 249
Case: [2011] NSWCCA 249
Decision Date: 25 November 2011

CaseChat Overview and Summary

In Beveridge v The Queen, the High Court of Australia heard an appeal from the appellant, Beveridge, against his conviction and sentence for murder. The facts of the case involved a violent altercation that resulted in the death of the victim, necessitating an examination of the legal principles surrounding murder and the elements required to establish such a conviction. The central issue before the Court was whether the trial judge correctly instructed the jury on the legal requirements for a murder conviction and whether the evidence was sufficient to support such a conviction.

The Court considered whether the trial judge's directions to the jury correctly encapsulated the legal standards for murder, specifically focusing on the elements of intent and recklessness. The appellant argued that the jury was not properly directed regarding the need to consider both direct intent and recklessness as alternative bases for murder. The Court had to determine if the trial judge's instructions adequately covered these aspects and whether any misdirection could have influenced the jury's verdict. Additionally, the sufficiency of the evidence in establishing the appellant's guilt beyond reasonable doubt was scrutinised, with attention to whether the evidence supported a conclusion of murder as opposed to manslaughter.

The Court found that the trial judge's directions to the jury were deficient in that they did not sufficiently articulate the legal principles pertaining to recklessness as an alternative to direct intent. This misdirection was deemed significant enough to potentially have affected the jury's decision-making process. Consequently, the Court quashed the appellant's conviction for murder and ordered a retrial, emphasising that the trial judge must provide clear and comprehensive directions to the jury on all possible legal pathways to a murder conviction. The Court did not address the sufficiency of the evidence, as the misdirection alone warranted a retrial. The final orders included the quashing of the conviction and the mandating of a retrial, with a directive that the trial judge provide accurate legal instructions to the jury.

Orders