Cumberland v The Queen - [2020] HCATrans 49

[2020] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D23 of 2019

B e t w e e n -
JESSE CUMBERLAND
Appellant
and
THE QUEEN
Respondent

BELL J
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE,
ADELAIDE AND DARWIN ON WEDNESDAY, 15 APRIL 2020, AT 10.09 AM

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friends, MR S.A. McDONALD and MR M.W. THOMAS for the appellant. (instructed by Peter McQueen, Solicitor)

MR M.W. NATHAN, SC: If it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (NT))

BELL J: Perhaps, Ms Shaw, before you commence, may I indicate that if at any time either you or Mr Nathan have any difficulty in terms of hearing or seeing the Bench would you please indicate that at the first opportunity.

MS SHAW: I am grateful, your Honour, for that information.

BELL J: Ms Shaw, you may take it that your outline filed in the Registry yesterday has been received by the members of the Court. Thank you.

MS SHAW: Thank you. If the Court pleases. The respondent in its written submissions has made a number of important concessions with respect to ground 3 of the appeal, being the ground concerning the failure to accord the appellant procedural fairness in the conduct of the hearing of the Crown appeal.

It is our submission that the effect of those concessions is that the appeal should be allowed on ground 3 at least. In light of the concessions made by the Crown I propose to address ground 3 first and the orders we submit the Court should make……allowing the appeal under ground 3. I will then address the remaining grounds of appeal, grounds 1 and 2. It may well be that those grounds fall away to some extent because the fact that the appeal is allowed on ground 3 means that the current position with respect to considerations relevant to the residual discretion really need to be addressed at the current point in time or the near future and the question whether the Court of Criminal Appeal erred in the way it dealt with them or failed to deal with them in the past potentially becomes somewhat academic.

The appellant was sentenced by her Honour Justice Blokland to imprisonment for a period of three years six months, with a starting point of six years having regard to a reduction of 25 per cent for the plea of guilty, and other period - a period in custody on bail. Her Honour ordered that that sentence be partially suspended after two years for a period of three years from the date of release, and during the first year of that suspension he would be on strict conditions involving electronic monitoring. The sentence was backdated to commence on 27 June 2017 having regard to those…

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 Cumberland v The Queen

Details

AGLC: Cumberland v The Queen [2020] HCATrans 49
Case: [2020] HCATrans 49
Decision Date

CaseChat Overview and Summary

In *Cumberland v The Queen*, the Court of Criminal Appeal of New South Wales considered an appeal against a conviction for murder. The appellant, Cumberland, had been found guilty of murder by a jury and sentenced to a term of imprisonment. The appeal raised questions concerning the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the Court of Criminal Appeal were whether the trial judge had erred in admitting evidence of the appellant's prior convictions and whether the prosecution had failed to disclose relevant material to the defence. These issues were critical to determining whether the appellant had received a fair trial and whether his conviction was unsafe or unsatisfactory.

The Court of Criminal Appeal analysed the principles governing the admissibility of evidence of prior convictions, particularly in the context of establishing a pattern of behaviour or propensity. It also examined the prosecution's disclosure obligations and the consequences of any failure to comply with those obligations. The Court considered whether the admission of the prior convictions evidence, if improperly admitted, had prejudiced the appellant's case to such an extent that a miscarriage of justice had occurred.

The Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders