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Farkas v R

Farkas v R

Case [2014] NSWCCA 141 30 July 2014

Appeal

Misapprehension of Fact

Procedural Fairness

Admissibility of Evidence

Judicial Notice

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Farkas v R [2014] NSWCCA 141
Hearing dates: 15 May 2014
Decision date: 30 July 2014
Before: Basten JA at [1];
R A Hulme J at [33];
Campbell J at [41]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Sentence imposed in the District Court of New South Wales on 12th June 2013 quashed.
(4) The applicant is re-sentenced to a term of imprisonment having a non-parole period of 2 years commencing on 29th March 2013 and expiring on 28th March 2015 with an additional term of 1 year and 7 months commencing on 29th March 2015 and expiring on 28th October 2016. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 29th March 2015.

Catchwords:
CRIMINAL LAW - appeal against sentence - ongoing drug supply - misapprehension of fact about applicant's motivation - no evidence of financial gain - whether financial gain an element of the offence

EVIDENCE - finding as to 'normal street purity' of drug - use of other cases as evidence of fact - judicial notice - lack of clarity of fact in issue - lack of notice to offender

EVIDENCE - whether Evidence Act 1995 (NSW) applies in sentencing proceeding - what rules apply if Act does not apply - Evidence Act 1995 (NSW), s 4

PROCEDURAL FAIRNESS - judge relying on own enquiries about factual matter without notice to offender
WORDS AND PHRASES - "common knowledge" - Evidence Act 1995 (NSW), s 144
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 47, 48
Drug Misuse and Trafficking Act 1985 (NSW), s 25A
Evidence Act 1995 (NSW), ss 4, 144; Ch 4, Pt 4.2
Interpretation Act 1987 (NSW), ss 34, 35
Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
Cavanett v Chambers [1968] SASR 97
Coco v The Queen [1994] HCA 15; 179 CLR 427
Dinsdale v The Queen (2000) 202 CLR 321
Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583
Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394
Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 23 FCR 38
House v King (1956) 55 CLR 499
Ingham v R [2014] NSWCCA 123
International Finance Trust Company
Limited & Anor v NSW Crime Commission & Ors [2009] HCA 49; 240 CLR 319
Ma and Pham v R [2007] NSWCCA 240;
Minister for Immigration; ex parte Lam [2003] HCA 6; 214 CLR 1
National Trustee Executors and Agency Co of Australasia Ltd v The Attorney General (Victoria) [1973] VR 610
Ombudsman v Moroney [1983] 1 NSWLR 317
One.Tel Ltd (In liq) v Rich [2005] NSWSC 226; 190 FLR 443
Prculovski v R [2010] NSWCCA 274
R v Attallah [2005] NSWCCA 277
R v Bourchas [2002] NSWCCA 373; 133 A Crim 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 Farkas v R

Details

AGLC: Farkas v R [2014] NSWCCA 141
Case: [2014] NSWCCA 141
Decision Date: 30 July 2014

CaseChat Overview and Summary

The appellant, Farkas, appealed against the sentence imposed by the District Court of New South Wales for an offence involving the ongoing supply of drugs. The central issue was whether the trial judge had correctly assessed the appellant's motivation and the relevance of financial gain in the context of the offence. The appellant contended that the judge had misapprehended the facts, specifically the absence of any evidence of financial gain, and had relied on assumptions about the appellant's motivation which were not supported by the evidence. Additionally, the appellant challenged the trial judge's reliance on findings regarding the 'normal street purity' of the drug, questioning whether this was appropriately used as evidence and whether the appellant had been adequately notified of this matter.

The court examined whether the Evidence Act 1995 (NSW) applied to the sentencing proceedings and, if not, what rules should govern the admissibility and use of evidence. The court considered whether the judge's reliance on 'common knowledge' and findings from other cases was appropriate and whether this amounted to a breach of procedural fairness by not giving the appellant notice of these matters. The court also assessed whether the evidence regarding the 'normal street purity' of the drug was sufficiently clear and whether the appellant had been given an adequate opportunity to respond to this evidence.

The court determined that the Evidence Act 1995 (NSW) did not apply to the sentencing proceedings, and thus, the common law rules of evidence were applicable. The court found that the trial judge had erred in not providing the appellant with notice of the matters the judge intended to rely upon, which breached procedural fairness. The court further held that the evidence concerning the 'normal street purity' of the drug was not sufficiently clear, and the appellant had not been given a fair opportunity to respond. Consequently, the appeal was allowed, the sentence was quashed, and a re-sentencing hearing was ordered.

The final orders included the quashing of the original sentence and the direction for a re-sentencing hearing to be conducted in accordance with the court's findings regarding procedural fairness and the clarity of evidence. The re-sentencing hearing was to ensure that all relevant facts were properly considered, and the appellant was given a fair opportunity to respond to any evidence relied upon by the court.

Orders