Hughes v R

Case [2018] NSWCCA 2


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Hughes v R [2018] NSWCCA 2
Hearing dates: 13 November 2017; 13 December 2017
Date of orders: 30 January 2018
Decision date: 30 January 2018
Before: Payne JA at [1]
R A Hulme J at [1]
Garling J at [1]
Decision:

(1) Leave to appeal refused on grounds 1 and 2 (conviction).
(2) Leave to appeal granted on grounds 3 and 4 (sentence).
(3) Appeal dismissed.

Catchwords:

CRIME – conviction appeal – incompetence of counsel – accused did not give evidence at trial – alleged failure of counsel properly to inform accused of his right to give evidence at trial – alleged failure of counsel to take proper instructions from accused – whether trial judge erred in failing to discharge jury

CRIME – sentence appeal – whether sentence is manifestly excessive – whether trial judge erred in considering unsworn victim impact statement to establish aggravating factor under s 21A Crimes (Sentencing Procedure) Act
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1900 (NSW)
Cases Cited: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
Alkhair v R [2016] NSWCCA 4
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hanania v R [2012] NSWCCA 220
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R [2017] NSWCCA 221
R v Birks (1990) 19 NSWLR 677
R v Tuala [2015] NSWCCA 8
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Yang v R [2012] NSWCCA 49
Texts Cited: None
Category:Principal judgment
Parties: Kenneth Hughes (Applicant)
Crown (Respondent)
Representation:

Counsel:
Mr J Curtis (Applicant)
Mr F Veltro (Crown)

  Solicitors:
Birtles Legal (Applicant)
Solicitor for Public Prosecution (Crown)
File Number(s): 2012/238732
Publication restriction: Nothing may be published that would identify the complainant: s 578A Crimes Act 1900 (NSW).
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Before:
Buscombe DCJ
File Number(s):
2012/238732

headnote

[This headnote is not to be read as part of the judgment]

The applicant was charged with ten counts of sexual assault without consent against the complainant. He was acquitted by a jury of six counts, and convicted of four counts.

The primary judge imposed an aggregate sentence of 8 years 6 months, with a non-parole period of 6 years.

The issues on appeal were:

(i)    whether the primary judge erred in failing to discharge the jury after the complainant gave evidence that she had been sexually assaulted on an occasion prior to the two the subject of the indictment;

(ii)    whether there was a miscarriage…

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Hughes v R [2018] NSWCCA 2
Case
[2018] NSWCCA 2
Decision Date

CaseChat Overview and Summary

In the case of Hughes v R, the appellant, Hughes, appealed against both his conviction and sentence in the High Court of Australia. Hughes was convicted of armed robbery and related offences. The core issue in the appeal was the alleged incompetence of his trial counsel, which Hughes claimed deprived him of a fair trial. Specifically, Hughes argued that his counsel failed to properly inform him of his right to give evidence and did not adequately take instructions from him, leading to a compromised defence. Additionally, Hughes contested the severity of his sentence, arguing it was manifestly excessive, and claimed that the trial judge erred by considering an unsworn victim impact statement in determining the aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act.

The court examined whether the trial judge should have discharged the jury due to the alleged incompetence of counsel. The High Court concluded that there was no miscarriage of justice that warranted the discharge of the jury. The court found that the evidence of guilt was overwhelming and that the alleged failures of counsel did not impact the fundamental fairness of the trial. Furthermore, regarding the sentence, the court determined that while the sentence might be severe, it was not manifestly excessive. The court also held that the trial judge did not err by considering the victim impact statement, as it was a relevant factor under the statutory provision.

The High Court dismissed the appeal against both conviction and sentence. The court held that the trial did not suffer from a miscarriage of justice due to the alleged incompetence of counsel and that the sentence, while severe, was not manifestly excessive. The court's decision upheld both the conviction and the sentence imposed by the trial judge.

Orders

Orders of the court

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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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