Criminal law and procedure - Application for leave to appeal against conviction - Inconsistency of verdicts - Applicant discharged defence counsel during trial - Applicant given short adjournment to attempt to engage other counsel or prepare to continue trial unrepresented - Whether more substantial adjournment should have been allowed - Whether applicant should have been permitted to allow recall of prosecution witnesses for further cross-examination - Whether trial miscarried by reason of incompetence of defence counsel and failure to follow applicant's instructions - Whether trial miscarried by reason of errors of fact made by trial Judge and Crown prosecutor in addressing jury

Sentence - Aggregate term of 8 years imprisonment with eligibility for parole for three counts of sexual assault committed on the one occasion - Whether manifestly excessive

Legislation:

Nil

Result:

Application for leave to appeal against conviction dismissed
Application for leave to appeal against sentence dismissed

Representation:

Counsel:

Applicant: Mr S G Scott
Respondent: Mr R E Cock QC & Ms J A Girdham

Solicitors:

Applicant: Stables Scott
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Jones v The Queen (1997) 191 CLR 439
R v Birks (1990) 19 NSWLR 677
R v Masters (1992) 59 A Crim R 445

Case(s) also cited:

Bridgman v The Queen, unreported; CCA SCt of WA; Library No 8712; 12 February 1991
Cookson v The Queen (1989) 45 A Crim R 121
Dietrich v The Queen (1992) 177 CLR 292
Johnson v The Queen [1999] WASCA 75
Kilner v The Queen [1999] WASCA 189
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
R v JGO, unreported; CCA SCt of NSW; 5 December 1996
Reid v Readdy [1999] WASCA 208
Vella v The Queen [1992] WAR 537
Walker v The Queen (1998) 101 A Crim R 152
Wilde v The Queen (1988) 164 CLR 365

MURRAY J: On 19 June the Court granted an extension of time to permit the hearing of these applications and amended the grounds upon which they proceeded. As so amended, the grounds of the application for leave to appeal against both conviction and sentence are as follows:
"The verdict of the jury was unsafe and unsatisfactory for the following reasons:
A.
The jury's verdicts in:
(a)acquitting the appellant on counts 1, 2 and 6 and;
(b)convicting the appellant on counts 3, 4 and 5
were inconsistent.
PARTICULARS
1.The issue at the trial was consent. There was no real issue concerning honest and reasonable but mistaken belief pursuant to Section 24 of the Criminal Code given that the appellant, in cross‑examination, conceded that the complainant actually consented to all sexual advances…

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 Fernando v The Queen

Details

AGLC: Fernando v The Queen [2000] WASCA 289
Case: [2000] WASCA 289
Decision Date: 11 OCTOBER 2000

CaseChat Overview and Summary

In the case of Fernando v The Queen, the applicant sought leave to appeal against his conviction and sentence. The applicant was convicted of three counts of sexual assault, committed on the same occasion, for which he was sentenced to an aggregate term of eight years imprisonment, with eligibility for parole. The applicant argued that the trial miscarried due to several reasons, including the discharge of his defence counsel during the trial, the trial judge's refusal to grant a more substantial adjournment, and the trial judge's and Crown prosecutor's errors in addressing the jury. The applicant also argued that the sentence was manifestly excessive.

The primary legal issues the court had to address were whether the trial miscarried due to the applicant's discharge of his defence counsel, the refusal to grant a more substantial adjournment, and the alleged errors made by the trial judge and Crown prosecutor. The court also had to determine whether the sentence imposed was manifestly excessive. In considering these issues, the court examined the principles of criminal law and procedure, including the right to a fair trial and the factors relevant to sentencing.

The court found that the trial did not miscarry due to the discharge of the applicant's defence counsel, as the applicant was given a short adjournment to engage other counsel or prepare to continue the trial unrepresented. The court held that the trial judge did not err in refusing a more substantial adjournment, as the applicant had not demonstrated that such an adjournment was necessary. The court also found that there were no errors made by the trial judge or Crown prosecutor that would have affected the outcome of the trial. In relation to the sentence, the court held that the aggregate term of eight years imprisonment, with eligibility for parole, was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence.

The court dismissed the application for leave to appeal, holding that there were no grounds upon which the applicant's conviction or sentence could be successfully challenged. The court emphasised the importance of respecting the trial judge's role in managing the trial and the principle that appellate courts should not lightly interfere with the outcome of criminal trials.

Orders