Collins v R - [2006] NSWCCA 162

CITATION: Collins v R [2006] NSWCCA 162

HEARING DATE(S): 10 March 2006

JUDGMENT DATE:
22 May 2006

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Johnson J at 86

DECISION: (i) appeal against conviction dismissed; (ii) leave granted to appeal against sentence; (iii) appeal against sentence allowed to the extent only that the sentence of imprisonment for eight years with a non-parole period of five years to commence on 16 February 2005 be set aside. The appellant re-sentenced to a period of imprisonment for eight years, commencing on 8 October 2004 and expiring on 7 October 2012, with a non-parole period of five years, expiring on 7 October 2009.

CATCHWORDS: appeal against conviction - application for leave to appeal against sentence - aggravated armed robbery with wounding - conflicting accounts given by complainant - leave granted to Crown Prosecutor to cross-examine complainant - directions to jury with respect to evidence of identification - complainant and complainant's husband known to appellant - complainant's husband pleaded guilty to charge of accessory after fact of armed robbery of his wife - complainant's out of court representations at variance with trial identification evidence - directions to jury - unreliable evidence - descriptive evidence - warning not required - warning not prohibited - no error in directions to jury - directions adequate - whether verdict unreasonable - appellant's prior criminal record - offence committed whilst on conditional liberty - victim vulnerable - planned criminal activity - whether appellant knew of victim's vulnerability - pre-trial period in custody - sentence to reflect pre-trial period in custody

LEGISLATION CITED: Crimes Act 1900 s96
Crimes (Sentencing Procedure) Act 1999 s9, s12, s21A
Evidence Act 1995 s38, s116, s165

CASES CITED: M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
R v Rose [2002] NSWCCA 455; 55 NSWLR 701

PARTIES: Cassandra Collins - Appellant
Crown - Respondent

FILE NUMBER(S): CCA 2005/2229

COUNSEL: B Rigg - Appellant
G Rowling - Respondent

SOLICITORS: B Duchan - Appellant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3000

LOWER COURT JUDICIAL OFFICER: Neild DCJ

LOWER COURT DATE OF DECISION: 16/02/2005

2005/2229

SPIGELMAN CJ
SIMPSON J
JOHNSON J
Monday 22 May 2006

Cassandra COLLINS v REGINA

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 SIMPSON J: On 16 February 2005, following a trial by jury, the appellant was convicted on an indictment that charged her with a single count of robbery with wounding in circumstances of aggravation. The victim of the offence was Mrs Ivon El-Sobky. (It was never in issue that the offence had been committed, the issue for jury determination was whether the appellant had been proven to be the perpetrator.) Pursuant to s96 of the Crimes Act 1900 the conviction exposed the appellant to a maximum penalty of imprisonment for 25 years. On 10 May 2005 Nield DCJ sentenced her to imprisonment for eight years, commencing…

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 Collins v R

Details

AGLC: Collins v R [2006] NSWCCA 162
Case: [2006] NSWCCA 162
Decision Date: 22 May 2006

CaseChat Overview and Summary

The case of Collins v R involved an appeal against conviction and sentence by the appellant for aggravated armed robbery with wounding. The dispute arose from a conflicting account given by the complainant regarding the identity of the offender, and whether the appellant was indeed the person who committed the crime. The case was heard by the court of appeal, which was required to decide on the legal issues pertaining to the reliability of the evidence provided by the complainant, the adequacy of the directions given to the jury, and the reasonableness of the verdict given the evidence presented.

The court examined the issue of whether the leave granted to the Crown Prosecutor to cross-examine the complainant was appropriate, given the complainant and the complainant's husband's prior acquaintance with the appellant. The court also considered whether the directions provided to the jury with respect to the evidence of identification were adequate, taking into account the complainant's out-of-court representations that were at variance with the trial identification evidence. The court concluded that the warning was not required and not prohibited, and that the directions to the jury were adequate. The court further found that the verdict was not unreasonable given the evidence presented.

The court of appeal examined the appellant's prior criminal record, the fact that the offence was committed while the appellant was on conditional liberty, and the vulnerability of the victim. The court considered whether the appellant knew of the victim's vulnerability and whether this factor should be taken into account in the sentencing. The court also examined the pre-trial period in custody and whether the sentence should reflect this period. Ultimately, the court found that the sentence was appropriate given the circumstances of the case. The appeal against conviction and sentence was dismissed, and the original verdict and sentence were upheld.

Orders