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
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…
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.
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Details
AGLC
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.