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Cornwell v R

Cornwell v R

Case [2015] NSWCCA 269 14 October 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cornwell v Regina [2015] NSWCCA 269
Hearing dates: 14 September 2015
Date of orders: 14 September 2015
Decision date: 14 October 2015
Before: Basten JA at [1]
Hall J at [9]
Wilson J at [70]
Decision:
(1)   Extend time within which the applicant may seek leave to appeal against the sentence imposed on him in the District Court;

(2)   Admit the evidence not before the sentencing judge as to the applicant’s current medical condition;

(3)   Grant leave to appeal;

(4)   Set aside the sentence imposed on the applicant in the District Court;
(5)   Sentence the applicant to an aggregate sentence of four years and six months imprisonment, with a non-parole period of two years and six months to date from 24 October 2013. The non-parole period will therefore expire on 23 April 2016.
Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – applicant suffered undiagnosed medical condition (Huntington’s Disease) at time of sentence – applicant sought leave to adduce medical evidence as to diagnosis and symptoms on appeal – applicant argued that he should be re-sentenced in light of fresh evidence – evidence as to medical condition suffered at time of sentencing and which would make time in custody more burdensome is an exception to the general rule that fresh evidence should not be admitted after sentence – relevant to take into account the reason for evidence not being adduced previously – here psychological explanation justified decision not to adduce the evidence at the time of sentencing – fresh medical evidence admitted – applicant re-sentenced
Legislation Cited: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Criminal Appeal Act 1912
Cases Cited: Dudgeon v R [2014] NSWCCA 301
Fordham v R (1997) 98 A Crim R 359
Khoury v R (2011) 209 A Crim R 509
R v Smith (1987) 44 SASR 587
Turkmani v R [2014] NSWCCA 186
Category: Principal judgment
Parties: Jason Robert Ross Cornwell (Applicant)
Regina (Respondent)
Representation:
Counsel:
H White (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/152905
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

24 October 2013

Before:

Blackmore DCJ

File Number(s):

2013/152905

Judgment

BASTEN JA: At the hearing of the application for leave to appeal against sentence, the Court made orders resentencing the applicant in the manner explained by Hall J, but reserved its reasons.
In the course of the hearing, submissions focused on three issues, namely (a) whether evidence of the diagnosis of Huntington’s disease, made after the applicant was sentenced, could and should be admitted on the appeal; (b) whether the evidence demonstrated reduced moral culpability at the time of the offending and, (c) whether the evidence justified a reduction in sentence because of the harsher conditions of imprisonment as a result of the new diagnosis.
The further evidence was duly admitted at the hearing of the application for leave to…

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 Cornwell v R

Details

AGLC: Cornwell v R [2015] NSWCCA 269
Case: [2015] NSWCCA 269
Decision Date: 14 October 2015

CaseChat Overview and Summary

The applicant, Cornwell, sought leave to appeal against his sentence on the grounds that he suffered from an undiagnosed medical condition, Huntington’s Disease, at the time of sentencing. The matter was heard in the court of appeal where the central issue was whether Cornwell should be re-sentenced in light of the fresh medical evidence he wished to present. The court had to determine if the medical condition and its impact on his ability to serve the sentence constituted an exception to the general rule against admitting fresh evidence post-sentencing.

The legal issues revolved around whether the fresh medical evidence about Cornwell's condition should be considered and if it justified a re-sentencing. The court considered the principles that allow for fresh evidence to be admitted in exceptional circumstances and examined the rationale behind Cornwell's decision not to present this evidence at the time of sentencing. The applicant's psychological state at the time, which explained his failure to present the medical evidence earlier, was a significant factor in the court's deliberations.

The court concluded that the medical evidence was an exception to the general rule and granted Cornwell leave to present it. The psychological explanation provided by the applicant was deemed sufficient to justify not presenting the evidence previously. Consequently, the court admitted the fresh medical evidence and re-sentenced Cornwell, taking into account the impact of his medical condition on his ability to serve the sentence.

Orders