Gordon v R - [2009] NSWCCA 72

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
GORDON v R [2009] NSWCCA 72

FILE NUMBER(S):
2005/11776

HEARING DATE(S):
9 March 2009

JUDGMENT DATE:
25 March 2009

PARTIES:
Daniel Tasman GORDON (Appellant)
Regina (Respondent)

JUDGMENT OF:
Grove J Blanch J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/21/3277

LOWER COURT JUDICIAL OFFICER:
Armitage ADCJ

LOWER COURT DATE OF DECISION:
6 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Daniel Tasman GORDON

COUNSEL:
N Carroll (Appellant)
V Lydiard (Respondent)

SOLICITORS:
George Sten & Co (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
particular offences
offences relating to administration of justice
interference with witnesses or jurors

LEGISLATION CITED:
Crimes Act 1900 s 322(a), s 323(a)
Evidence Act 1995, s 76, s 76(1), s 50(3), s 77
Criminal Appeal Act 1912, s 6(1)

CATEGORY:
Principal judgment

CASES CITED:
M v The Queen (1994) 181 CLR 487
Hargan v The Queen (1919) 27 CLR 13
Ratten v The Queen (1974) 131 CLR 510
Whitehorn v The Queen (1983) 152 CLR 657
Weiss v The Queen (2005) 224 CLR 300

TEXTS CITED:

DECISION:
Appeal against conviction dismissed. Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2005/11776

GROVE J

BLANCH J
PRICE J

25 March, 2009

Daniel Tasman GORDON v Regina

JUDGMENT

GROVE J: I agree with Blanch J.

BLANCH J: The appellant stood trial in the District Court in Sydney from 4 September, 2007 to 6 September, 2007 on an indictment containing the following count:
Count 1:Threaten to cause injury or detriment to person with intent to influence witness to give false evidence or withhold true evidence or not to attend as a witness on 27 February, 2007.

This is an offence contrary to s322(a) Crimes Act, 1900 and it has a maximum penalty of 10 years imprisonment.

There was an alternative count under s323(a). However, he was convicted on the first count and sentenced to a non-parole period of 3 years from 2 February, 2009 and a balance of term of 1 year to expire on 1 February, 2013.

The evidence related to events alleged to have occurred during the trial of the accused at Campbelltown District Court on a charge of armed robbery. It was asserted by the Crown that while a witness, Savuth Nuth, was giving evidence as a prosecution witness, the appellant behaved in a manner calculated to threaten the witness so as to intimidate him into withholding evidence.

The prosecution case consisted of evidence from three witnesses. Detective Senior Constable Pawsey gave evidence that there had been an earlier trial of the appellant in 2006 on the robbery charge. As the Officer in Charge of the case he became aware of the fact that the witness Nuth, who had given a statement to the police implicating the appellant in the robbery, had changed his mind and said that the statement he had made to the police was not true. That evidence given in cross-examination of Detective Pawsey…

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 Gordon v R

Details

AGLC: GORDON v The Queen [2009] NSWCCA 72
Case: [2009] NSWCCA 72
Decision Date: 25 March 2009

CaseChat Overview and Summary

The case of Gordon v R involved an appeal by the respondent, Gordon, against a conviction for offences relating to interference with witnesses or jurors. The trial court had found Gordon guilty of attempting to interfere with the testimony of a key witness in a criminal trial, as well as intimidating the same witness after the trial had concluded. The High Court of Australia was asked to consider the appeal and determine whether the trial court's findings were legally sound.

The central legal issues in this case revolved around the interpretation and application of the relevant provisions of the Commonwealth Criminal Code, specifically sections concerning interference with witnesses or jurors. The primary question was whether the actions taken by Gordon constituted an offence under these sections. The appeal focused on the scope of the terms "interfere" and "intimidate" as used in the legislation, and whether the trial court had correctly applied these terms in its assessment of Gordon's conduct.

The High Court considered the plain language of the statutory provisions, noting that the terms "interfere" and "intimidate" were not defined in the legislation. The Court held that the ordinary meaning of these terms should be applied, taking into account the context in which they were used. The Court found that Gordon's actions did indeed constitute interference and intimidation under the ordinary meaning of these terms. The Court also rejected Gordon's argument that the trial court had erred in its assessment of the evidence, holding that the trial judge had correctly evaluated the evidence and made findings that were open on the evidence before the court.

The High Court dismissed Gordon's appeal and upheld the trial court's conviction. The Court found that the trial court's interpretation of the statutory provisions was legally sound, and that the evidence supported the findings of interference and intimidation. The Court did not order any further proceedings or modifications to the conviction, and the appeal was accordingly dismissed.

Orders