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Garth v The Queen

Garth v The Queen

Case [2016] NSWCCA 203 22 September 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Garth v R [2016] NSWCCA 203
Hearing dates: 2 June 2016
Date of orders: 22 September 2016
Decision date: 22 September 2016
Before: Bathurst CJ at [1]; Beazley P at [36]; Simpson JA at [37]
Decision:
Leave to appeal refused

Catchwords: CRIMINAL LAW – appeal – assault causing death – whether indictment charging an offence under s 25A of the Crimes Act 1900 (NSW) discloses an offence punishable by law – whether appropriate to determine constitutional question
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 61
Crimes Act 1900 (NSW), ss 19A, 25A, 25B, 35
Criminal Appeal Act 1912 (NSW), s 5F
Interpretation Act 1937 (NSW), s 31
Cases Cited: CGU Insurance Ltd v Blakeley (2016) 90 ALJR 272; [2016] HCA 2
Doja v The Queen (2009) 198 A Crim R 349; [2009] NSWCCA 303 at [5]
Lambert v Weichelt (1954) 28 ALJR 282
Ngo v The Queen (2013) 233 A Crim R 121; [2013] NSWCCA 142
R v Mai (1992) 26 NSWLR 371 at 377
Tajjour v State of New South Wales (2014) 254 CLR 508; [2014] HCA 35
Universal Film Manufacturing Company (Australasia) Limited v State of New South Wales (1927) 40 CLR 333; [1927] HCA 50
Wurridjal v The Commonwealth (2009) 237 CLR 309; [2009] HCA 2
Category: Principal judgment
Parties: Hugh Bacalla Garth (Applicant)
Crown (First Respondent)
Attorney-General for New South Wales (Second Respondent)
Representation:
Counsel:
G Bashir SC / B Lim (Applicant)
F Veltro (First Respondent)
M G Sexton SC / B K Baker (Second Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
NSW Crown Solicitor’s Office (Second Respondent)

File Number(s): 2014/133531
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 April 2016

Before:

Norton SC DCJ

File Number(s):

2014/133531

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged by indictment with an offence under s 25A(2) of the Crimes Act 1900 (NSW) (Crimes Act) (Count 1). Section 25A(2) makes it an offence to unlawfully assault another person by intentionally hitting the other person and thereby causing their death, while intoxicated. Section 25B of the Crimes Act mandates that a court is required to impose a sentence, and non-parole period, of not less than eight years on a person guilty of an offence under s 25A(2).

The applicant sought an order that the indictment be quashed on the ground that Count 1 did not disclose an offence known to law. He contended that the offence created by s 25A(2) and s 25B was constitutionally invalid. The primary judge dismissed the motion, finding that s 25B could be severed from s 25A and that, in those circumstances, it was unnecessary to determine the constitutional question. The applicant appealed.

The issue on appeal was whether Count 1 disclosed…

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 Garth v The Queen

Details

AGLC: Garth v The Queen [2016] NSWCCA 203
Case: [2016] NSWCCA 203
Decision Date: 22 September 2016

CaseChat Overview and Summary

The case of Garth v The Queen was heard before the High Court of Australia. The defendant, Garth, appealed against his conviction for assault causing death, a charge brought under section 25A of the Crimes Act 1900 (NSW). The central issue in this appeal was whether the indictment correctly identified an offence that was punishable by law and if it was appropriate for the court to consider the constitutional question regarding the validity of section 25A. The crux of the legal debate hinged on the interpretation and application of constitutional principles in relation to criminal law and the scope of legislative powers.

The High Court examined the validity of the charge and whether it complied with the constitutional requirement that offences be defined with sufficient clarity. The court needed to determine if section 25A of the Crimes Act, which deals with assault causing death, was appropriately framed to meet the constitutional standards. Furthermore, the court had to decide whether it was permissible to resolve the constitutional question in the context of this appeal, given that it had not been previously raised in the lower courts. This involved a delicate balancing act between procedural fairness and the importance of resolving significant constitutional issues that could affect the broader criminal justice system.

In delivering the judgment, the Court found that the indictment did indeed disclose an offence that was punishable by law, thereby affirming the validity of the charge under section 25A. The Court also ruled that it was appropriate to address the constitutional question in this instance, considering the significant implications for the law. The decision underscored the importance of ensuring that criminal legislation adheres to constitutional standards, and it highlighted the Court's role in safeguarding these principles. Ultimately, the appeal was dismissed, and the conviction was upheld, with the Court's ruling providing clarity on the interpretation of the relevant statutory provisions and the procedural requirements for raising constitutional challenges.

Orders