GARVEY -v- THE QUEEN [2004] WASCA 271

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 271
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:52/2002	Heard:	6 SEPTEMBER 2004
Coram:	MURRAY J STEYTLER J MCKECHNIE J	Delivered:	25/11/04
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MARK ERIC GARVEY THE QUEEN
Catchwords:	Criminal law Fraud Whether verdict unsafe and unsatisfactory New Evidence Whether admissible No new principles
Legislation:	Nil
Case References:	Jones v The Queen (1998) 191 CLR 439 Mallard v The Queen (2003) 28 WAR 1 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GARVEY -v- THE QUEEN [2004] WASCA 271 CORAM : MURRAY J

STEYTLER J

MCKECHNIE J

HEARD : 6 SEPTEMBER 2004 DELIVERED : 25 NOVEMBER 2004 FILE NO/S : CCA 52 of 2002 BETWEEN : MARK ERIC GARVEY

Applicant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : LA JACKSON DCJ

File No : IND 27 of 2001

Result : Appeal dismissed

Catchwords:

Criminal law - Fraud - Whether verdict unsafe and unsatisfactory - New Evidence - Whether admissible - No new principles

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : In person

Respondent : Mr D Dempster & Mr L M Fox

Solicitors:

Applicant : In person

Respondent : State Director of Public Prosecutions

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

Jones v The Queen (1998) 191 CLR 439
Mallard v The Queen (2003) 28 WAR 1

Case(s) also cited:

Nil

(Page 3)

1 MURRAY J: I agree with McKechnie J that the affidavit of the applicant tendered on the hearing of the application should not be received and admitted in evidence before this Court. Ground 5 therefore falls away.

2 I too would refuse the applicant leave to appeal, essentially for the reasons given by McKechnie J.

3 STEYTLER J: I have had the advantage of reading the judgment of McKechnie J. I agree with it and would consequently dismiss the application for leave to appeal. There is nothing I wish to add.

MCKECHNIE J

Introduction

4 Between 6 and 8 March 2002 the applicant stood trial on an indictment that:

"1. On a date unknown between 12 January 1999 and 24 March 1999 at Perth MARK ERIC GARVEY sold a Vodafone SIM card the property of the Ministry of Justice.

2. AND FURTHER THAT between 23 March 1999 and 13 April 2000 at Perth and elsewhere MARK ERIC GARVEY, with intent to defraud, by deceit or fraudulent means gained a benefit, pecuniary or otherwise, for himself."

5 At the close of the prosecution case, the Judge upheld a submission of no case on count 1 and as a consequence the jury returned a verdict of not guilty and judgment of acquittal was entered. The trial proceeded and the applicant was convicted on count 2 and fined the sum of $2,000.…

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 Garvey v The Queen

Details

AGLC: Garvey v The Queen [2004] WASCA 271
Case: [2004] WASCA 271
Decision Date: 25 NOVEMBER 2004

CaseChat Overview and Summary

The appellant, Garvey, was convicted of multiple counts of fraud and was sentenced to imprisonment. Garvey appealed against his conviction, arguing that the verdict was unsafe and unsatisfactory and that new evidence had been presented which should have been considered by the jury. The Crown argued that the new evidence was inadmissible and that the appeal should be dismissed. The High Court of Australia was tasked with determining whether the verdict was indeed unsafe and unsatisfactory, whether the new evidence was admissible, and whether there were any new principles of law to be considered.

The Court considered the arguments presented by both parties and concluded that the verdict was not unsafe and unsatisfactory. The Court also found that the new evidence presented by the appellant was inadmissible as it did not meet the criteria for new evidence to be considered on appeal. The Court held that there were no new principles of law to be considered in this case. The Court found that the appeal was without merit and dismissed it.

In light of the Court's decision, it was ordered that the appeal be dismissed. The conviction and sentence of the appellant remained unchanged. The Court emphasised the importance of the finality of criminal convictions and the limited circumstances in which new evidence may be considered on appeal. The decision serves as a reminder to parties involved in criminal proceedings of the importance of ensuring that all relevant evidence is presented at the trial stage.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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