Guider v The Queen

[2001] HCATrans 373

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S307 of 2000

B e t w e e n -

TIMOTHY PAUL GUIDER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 2001, AT 10.29 AM

Copyright in the High Court of Australia

MR A.M. BLACKMORE, SC:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

McHUGH J:   There is no appearance for the applicant.

MR BLACKMORE:   I have no submissions, may it please.

McHUGH J:   Yes.  The applicant said that he did not intend to present oral argument.  The Court has read the material and is now in a position to give judgment in the matter.

The applicant was convicted on two counts after a trial before a judge and jury in the District Court of New South Wales.  Count 1 charged a conspiracy to commit a robbery while armed with an offensive weapon.  Count 2 charged that on a specified day the applicant was armed with a weapon with intent to commit an indictable offence, namely, robbery while armed with an offensive weapon.  His appeal to the Court of Criminal Appeal of New South Wales was dismissed. 

The applicant relies for special leave to appeal to this Court on a number of grounds, principally that the Court of Criminal Appeal failed to determine all his grounds of appeal and that the Court of Criminal Appeal wrongly held that the applicant had failed to challenge a ruling by the trial judge that the evidence was properly obtained, that the Court of Criminal Appeal should have held that incompetence on the part of the applicant’s counsel caused a miscarriage of justice and that the applicant should have been permitted to introduce fresh evidence on the hearing of the appeal.

We have considered each of the grounds relied on.  Express or lengthy reference may not have been made to each of the grounds in the applicant’s notice to the Court of Criminal Appeal which was lengthy, but it is clear that during the hearing of the appeal the applicant was invited to raise and argue orally all matters that he wished to, whether in supplementation of his notice of appeal or otherwise.  The Court of Criminal Appeal dealt with all the matters which the applicant identified as the ones upon which he wished to rely.

In the Court of Criminal Appeal, Justice Fitzgerald was critical of aspects of the applicant’s lawyers’ conduct at the trial.  But we agree with his Honour that no conduct on their part caused any miscarriage of justice.  A voir dire was held at the trial with respect to evidence led from a police informant.  On the hearing of the voir dire, the applicant sought to challenge the reception of evidence from this witness.  However, the evidence was plainly admissible.  Accordingly, the ground in relation to it has no substance.

The evidence which the applicant contends to be fresh evidence, that is, evidence as to the informant’s mental condition, was not, as the respondent has submitted, truly fresh evidence and any omission to call it would almost certainly have been deliberate and tactical. 

The case against the applicant was a strong one.  There is nothing in any of the grounds of the appeal which the applicant could successfully urge if special leave were granted.  Accordingly, special leave to appeal against his conviction should be refused.

The applicant also seeks special leave to appeal against sentence.  The effect of the sentences for the two offences was that the applicant’s terms of imprisonment would expire on 17 May 2005.  The offences of which he was convicted were serious ones.  This Court does not ordinarily intervene in sentencing matters.  This is certainly not such an exceptional case as would justify any intervention.  Special leave to appeal against sentence should also be refused.

The Court will now adjourn to reconstitute.

AT 10.33 AM THE MATTER WAS CONCLUDED