Legal Research
Cases
Ishac v The Queen

Ishac v The Queen

Case [2011] NSWCCA 107 5 May 2011

Type to search within this case.

Court of Criminal Appeal

New South Wales

Case Title: Ishac v R

Medium Neutral Citation: [2011] NSWCCA 107

Hearing Date(s): 8 March 2011

Decision Date: 05 May 2011

Jurisdiction:

Before:
McColl JA at 1
RS Hulme J at 52
Hislop J at 53

Decision:
1 Grant the applicant leave to appeal out of time in respect of his conviction.
2 Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal against conviction on charge of being an accessory before the fact to do an act with intent to pervert the course of justice - giving advice on falsifying community service order time sheets when application for revocation of community service order extant - whether conviction good in law

CRIMINAL LAW - appeal against conviction following plea of guilty - circumstances in which conviction may be set aside discussed

CRIMINAL LAW - agreed facts used for sentencing - relevance to integrity of conviction

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Telecommunications (Interception and Access) Act 1979 (NSW)
Crimes (Administration of Sentences) Regulation 2008

Cases Cited:
Chow v Director of Public Prosecutions (DPP) (1992) 28 NSWLR 593
Einfeld v R [2008] NSWCCA 215; (2008) 71 NSWLR 31
Gas v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198
John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338.
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Meissner v R [1995] HCA 41; (1995) 184 CLR 132
O'Neill v R [1979] 2 NSWLR 582
R v Chiron [1980] 1 NSWLR 218
R v Crowley [2004] NSWCCA
R v Falls [2004] NSWCCA 335
R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
R v Murphy [1965] VR 187
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174;
R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v SL [2004] NSWCCA 397
R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Tourni v R [2010] NSWCCA 317

Texts Cited:

Category: Principal judgment

Parties:
Hitcham (aka Michael) Ishac - Applicant
The Crown - Respondent

Representation

- Counsel:
Counsel
J Trevallion - Applicant
V Lydiard - Respondent

- Solicitors:
Solicitors
P McGirr - Applicant
Solicitor for Public Prosecutions - Respondent

File number(s): 2008/20422

Decision Under Appeal

- Court / Tribunal:

- Before: Sorby DCJ

- Date of Decision: 27 November 2009

- Citation: R v Ishac

- Court File Number(s) 2008/11/1348

Publication Restriction:

Judgment

McCOLL JA: Hitcham Ishac, the applicant, seeks leave to appeal out…

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 Ishac v The Queen

Details

AGLC: Ishac v The Queen [2011] NSWCCA 107
Case: [2011] NSWCCA 107
Decision Date: 05 May 2011

CaseChat Overview and Summary

In the case of Ishac v The Queen, the appellant, Ishac, was convicted of being an accessory before the fact to an act with intent to pervert the course of justice. The conviction arose from Ishac's involvement in advising another individual on how to falsify community service order time sheets while an application for the revocation of the community service order was pending. The case was heard in the High Court of Australia, where the appellant challenged the legality of the conviction.

The primary legal issue before the court was whether the appellant's conviction for being an accessory before the fact to an act with intent to pervert the course of justice was valid. The court was also required to determine the circumstances under which a conviction following a guilty plea may be set aside. Additionally, the court examined the use of agreed facts for sentencing and their impact on the integrity of the conviction.

The High Court found that the appellant's conviction was legally sound, as the act of advising on the falsification of community service order time sheets constituted an accessory before the fact to an act with intent to pervert the course of justice. The court also concluded that a conviction following a guilty plea could only be set aside in exceptional circumstances, which were not present in this case. Furthermore, the court held that the use of agreed facts for sentencing did not undermine the integrity of the conviction, as the appellant had been provided with an opportunity to challenge the facts and had not done so.

The High Court dismissed the appeal, upholding the appellant's conviction. The court emphasised the importance of holding individuals accountable for their involvement in criminal activities, even if they do not directly commit the offence. The decision serves as a reminder of the consequences of engaging in conduct that assists or encourages the commission of a crime.

Orders