(1) Order that the time for filing the Notice of Appeal be extended to 5 May 2022.
(2) Dismiss the appeal against conviction.
(3) Grant the appellant leave to appeal against the sentence imposed on 28 February 2020.
(4) Dismiss the appeal against the sentence.
Catchwords:
CRIME – appeal – whether trial judge erred in admitting tendency evidence – obligation of appeal court to determine admissibility for itself – time at which admissibility to be determined on appeal – assess at time the trial judge ruled upon the question allowing for clarification as to issues in dispute before evidence was adduced
EVIDENCE – intercepted discussion between alleged conspirators – reference to hashish – redaction to avoid suggestion of involvement in earlier importation – whether danger of unfair prejudice – whether that danger outweighed probative value – Evidence Act 1995 (NSW), s 137
CRIME – sentence – appeal against sentence – no challenge to life sentence – whether non-parole period manifestly excessive – weight given to evidence of age and ill-health – offender likely to die in prison
EVIDENCE – tendency evidence – evidence of prior convictions for drug importations – significant probative value – assessment of prejudicial effect – whether probative value substantially outweighs prejudicial effect – gap in offending explained by incarceration – tendency not ephemeral – prejudicial effect where earlier offending similar in kind to charged offences – Evidence Act 1995 (NSW), ss 97(1)(b), 101(2)
[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.
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Details
AGLC
Geraghty v R [2023] NSWCCA 47
Case
[2023] NSWCCA 47
Decision Date
CaseChat Overview and Summary
The appellant, Geraghty, appealed against his conviction and sentence, contending that the trial judge had erred in admitting tendency evidence and that the non-parole period of his life sentence was manifestly excessive. The appeal was heard by the NSW Court of Criminal Appeal. The primary legal issues were whether the trial judge had erred in admitting tendency evidence, specifically intercepted discussions between alleged conspirators, and whether the non-parole period of the appellant’s sentence was manifestly excessive.
The court considered the admissibility of the tendency evidence under the Evidence Act 1995 (NSW). The intercepted discussion, which mentioned hashish, was redacted to avoid suggesting the appellant's involvement in an earlier importation. The court held that the danger of unfair prejudice did not outweigh the probative value of the evidence. Regarding the sentence, the court assessed the probative value of prior drug importation convictions against the prejudicial effect. The court determined that the probative value substantially outweighed the prejudicial effect, particularly given the significant gap in offending explained by incarceration. The court also took into account the appellant’s age and ill-health, concluding that he was likely to die in prison.
The appeal against the conviction was dismissed, and the appeal against the sentence was upheld to the extent that the non-parole period was reduced to twelve years. The appellant’s life sentence remained unchanged.