Doja v R

Case [2009] NSWCCA 303 18 December 2009

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Reported Decision: 198 A Crim R 349

New South Wales

Court of Criminal Appeal

CITATION: Doja v R [2009] NSWCCA 303

HEARING DATE(S): 18 September 2009

JUDGMENT DATE:
18 December 2009

JUDGMENT OF: Spigelman CJ at 1; McClellan CJatCL at 62; Grove J at 181

DECISION: 1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted but the appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - conviction appeal - defective indictment - failure to aver to the mental element of the offence - whether the defect was such as to render the indictment invalid - whether the defect has been cured by the jury verdict - whether the defect has been waived - whether the proviso should be applied - indictment not invalid - whether jury was misdirected by the trial judge - appeal against conviction dismissed - CRIMINAL LAW - appeal - sentence appeal - whether trial judge erred in his findings - little difference in criminality involved in an offence constituted by knowing falsehood as opposed to reckless disregard to the truth in this case - appeal against sentence dismissed

LEGISLATION CITED: Corporations Act 2001 (Cth)
Corrupt and Ilegal Practice Prevention Act 1883.
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Act 1968 (UK)),
Criminal Justice Amendment Act (1853)
Criminal Law Act 1977 UK
Criminal Law Amendment Act 1883
Criminal Procedure Act 1986
District Court Act 1973
Justices Act 1902 (NSW)

CATEGORY: Principal judgment

CASES CITED: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Boujaoude v The Queen [2008] NSWCCA 35; (2008) 72 NSWLR 85
Broome v Chenoweth (1946) 73 CLR 583
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Chanthaboury v The Queen [2007] NSWCCA 290; (2007) 176 A Crim R 438
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Glennon v The Queen (1993) 179 CLR 1
Heymann v The Queen (1873) LR 8 QB 102
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Kahatapitiye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542
Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366
Lodhi v R (2006) NSWCCA 121; (2006) 199 FLR 303
Lodhi v R [2006] NSWCCA 101; (2006) 65 NSWLR 573
Mackrell v Western Australia [2008] WASCA 228; (2008) 190 A Crim R 43
Pollard v DPP (1992) 28 NSWLR 659
Quartermaine v The Queen (1980) 143 CLR 595
R v Aspinall (1876) LR 2 QBD 48
R v Ayres [1984] 1 AC 447
R v Gervaise; R v Preece (NSWCCA, 13 November 1997, unreported)
R v Grant (1986) 82 Cr App R…

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 Doja v R

Details

AGLC: Doja v R [2009] NSWCCA 303
Case: [2009] NSWCCA 303
Decision Date: 18 December 2009

CaseChat Overview and Summary

The appellant, Doja, appealed against both his conviction and sentence following his conviction for offences under the Crimes Act 1900. The dispute centred around the validity of the indictment, specifically whether it adequately detailed the mental element of the offence, and whether the trial judge misdirected the jury. The case was heard in the Court of Criminal Appeal. The appellant argued that the indictment was defective because it failed to specify the mental element required for the offence. Additionally, he claimed that the trial judge had misdirected the jury on the required standard of proof, potentially influencing their verdict.

The court considered whether the indictment's defect rendered it invalid and whether this defect was cured by the jury's verdict. It also examined whether the appellant had waived any potential defect through his conduct during the trial. The court concluded that while the indictment was indeed defective, this did not invalidate it because the defect was not of a fundamental nature that would render the trial unfair. Furthermore, the court found that the defect had been effectively addressed by the jury's verdict, which aligned with the actual offence committed. The court also dismissed the claim that the trial judge had misdirected the jury.

The appeal against the conviction was dismissed, as the court found no basis to invalidate the indictment or to assert that the jury was misdirected. Regarding the sentence, the court assessed whether the trial judge had erred in his findings. It noted that the criminality involved in the offence, whether based on a knowing falsehood or a reckless disregard for the truth, was minimal in this context. Consequently, the appeal against the sentence was also dismissed. The court upheld the trial judge's sentencing, finding no grounds for an adjustment.

Orders