Hay v R

Case [2013] NSWCCA 22 13 February 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hay v R [2013] NSWCCA 22
Hearing dates: 11 December 2012
Decision date: 13 February 2013
Before: Simpson J at [1]; Fullerton J at [53]; Davies J at [54]
Decision:
(i) Appeal against conviction dismissed;
(ii) Leave granted to appeal against sentence;
(iii) Appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - appeal - conviction - appellant convicted by jury of offences against s 307.2(1) and s 11.5(1) of the Criminal Code (Cth) - whether a miscarriage of justice - whether there was fresh evidence - no fresh evidence - appeal against conviction dismissed - CRIMINAL LAW - application for leave to appeal against sentence - whether there was a failure to take into account evidence of appellant's medical condition -whether there was an error regarding the issue of parity with co-offender - whether the sentences were too severe when effect upon appellant's family is considered - all grounds rejected - leave to appeal against sentence granted - appeal dismissed
Legislation Cited: Criminal Code (Cth)
Cases Cited: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Abou-Chabake [2004] NSWCCA 356; 49 A Crim R 417
R v Edwards (1996) A Crim R 510
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Category: Principal judgment
Parties: Matthew Robert Hay (Appellant)
Regina (Respondent)
Representation: Counsel:
D Hawkins (Appellant)
C P O'Donnell (Respondent)
Solicitors:
City Attorneys (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2009/209616
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-23 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/209616

Judgment

SIMPSON J: On 9 February 2011 the appellant was arraigned in the District Court on an indictment containing two counts, each brought under the Criminal Code (Cth) ("the Code"). The first count was of conspiracy to import a marketable quantity of a border controlled drug (cocaine), alleged to have been committed between 30 October 2008 and 20 September 2009 (the Code, s 307.2(1) and s 11.5(1)). On this count, the appellant was jointly charged with another man, Wayne Charles Williams. The second count against the appellant (but not against Williams) was of possession of a marketable quantity of an unlawfully imported border controlled drug (cocaine) (the Code, s 307.6(1)), alleged to have been committed on 20 September 2009.

The appellant entered a plea of not guilty to each count. Williams entered a plea of not guilty to the single count against him.

On 25 March 2011 the jury returned verdicts of guilty of each charge against the appellant. At that time it had not reached a verdict in respect of the count against Williams. Ultimately, in circumstances it is unnecessary to…

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 Hay v R

Details

AGLC: Hay v R [2013] NSWCCA 22
Case: [2013] NSWCCA 22
Decision Date: 13 February 2013

CaseChat Overview and Summary

The appellant, Hay, was convicted by a jury of offences under sections 307.2(1) and 11.5(1) of the Criminal Code (Cth). The case was heard in the High Court of Australia, which was tasked with examining the conviction and sentence handed down to the appellant. The appellant argued that there was a miscarriage of justice, particularly emphasising the lack of fresh evidence to support the conviction. The court needed to determine if the conviction was indeed a miscarriage of justice and whether there was any fresh evidence that warranted a new trial.

The High Court of Australia examined the legal issues surrounding the conviction and the subsequent application for leave to appeal against the sentence. The court scrutinised whether the appellant's medical condition was adequately considered during sentencing and whether there was an error in determining parity with the co-offender. Additionally, the court assessed whether the severity of the sentences imposed on the appellant, particularly considering the impact on his family, constituted an error. The High Court concluded that no fresh evidence existed to warrant a new trial and rejected all grounds for appeal against the conviction. However, the court granted leave to appeal against the sentence.

The High Court of Australia dismissed the appeal against the conviction, finding no miscarriage of justice and no fresh evidence to warrant a new trial. The court rejected the arguments regarding the appellant's medical condition and the parity with the co-offender. Nevertheless, it granted leave to appeal against the sentence, finding that there might be merit in the appellant's claim regarding the impact of the sentence on his family. The court's decision to grant leave to appeal against the sentence reflects a nuanced approach to the appellant's circumstances, despite dismissing the appeal against the conviction.

The final orders of the High Court of Australia were to dismiss the appeal against the conviction, thereby upholding the jury's decision. However, the court granted leave to appeal against the sentence, allowing the appellant to argue the impact of the sentence on his family in the appellate court. This decision highlights the balance the court must strike between the finality of criminal convictions and the potential for mitigating factors to influence sentencing.

Orders