Farkas v R

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.