Ith v R

Case [2012] NSWCCA 70 26 April 2012

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Court of Criminal Appeal

New South Wales

Case Title: Ith v R

Medium Neutral Citation: [2012] NSWCCA 70

Hearing Date(s): 3 November 2011

Decision Date: 26 April 2012

Jurisdiction:

Before: McClellan CJ at CL at [1]
Adams J at [65]
Hoeben J at [66]

Decision: Leave to appeal out of time is refused.

Catchwords: CRIMINAL LAW - appeal - conviction - directions on identification evidence - directions on evidence of an accomplice - whether directions must be in the precise terms of the bench book - whether a miscarriage of justice was occasioned by all the circumstances - whether leave to appeal out of time should be granted - leave to appeal out of time denied

Legislation Cited: Evidence Act 1995
Criminal Appeal Rules

Cases Cited: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Hong v The Queen (2009) NSWCCA 242
R v Adams [2004] NSWCCA 279
R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300
R v Esho; R v Sako [2001] NSWCCA 415
R v Gonzalez-Betes [2001] NSWCCA 226
R v Nale [2002] NSWCCA 31
R v Sullivan 2003] NSWCCA 100
Santo v The Queen [2009] NSWCCA 269
Stanley v The Queen [2004] NSWCCA 278

Texts Cited:

Category: Principal judgment

Parties: Samban Ith (Applicant)
The Crown

Representation

- Counsel: W P Lowe (Applicant)
M M Cinque (Crown)

- Solicitors: Bilias & Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File number(s): 2007/13722

Decision Under Appeal

- Court / Tribunal:

- Before: Sorby DCJ

- Date of Decision: 06 March 2009

- Citation:

- Court File Number(s) 2008/21/3364

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: The applicant was convicted following a trial on the following count:
"On 1 February 2007 at Cabramatta in the State of New South Wales, whilst being in company with Sena Aji Dharma, did rob Quoc Vu Nguyen of certain property, namely a sum of cash, the property of Quoc Vu Nguyen and at the time of the robbery, did inflict grievous bodily harm on Quoc Vu Nguyen.
The applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years. He was sentenced on 6 March 2009 and filed a Notice of Intention to Appeal on 30 March 2009. Subsequently, approximately 7 months after the Notice of Intention to Appeal had expired, the applicant sought an extension of that notice. That application was refused by the Registrar.
A Notice of Application for Extension of Time to file a Notice of Application for Leave to Appeal was filed on 28 July 2011. It was accompanied by an affidavit sworn by the applicant's solicitor. The picture presented is of a failure by the applicant's original solicitor to prosecute the appeal with any expedition. The matter was assigned to the applicant's present solicitor by Legal Aid on 28 April 2010. Thereafter the matter has proceeded slowly. However, I am satisfied…

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 Ith v R

Details

AGLC: Ith v R [2012] NSWCCA 70
Case: [2012] NSWCCA 70
Decision Date: 26 April 2012

CaseChat Overview and Summary

The appellant, Ith, appealed against his conviction on the basis that the trial judge's directions to the jury regarding identification evidence and evidence of an accomplice were inadequate. The case was heard by the High Court of Australia. The central issue before the court was whether the trial judge's directions to the jury were defective, specifically in relation to the precision required in the directions and whether a miscarriage of justice had occurred. Additionally, the court considered whether leave to appeal out of time should be granted.

The court found that the trial judge's directions were not required to be in the precise terms of the bench book, provided they were sufficient to safeguard the rights of the accused. The court held that there was no miscarriage of justice in this instance, as the jury was adequately informed of the considerations relevant to the identification evidence and the evidence of an accomplice. The court also determined that leave to appeal out of time should not be granted, as the appellant had failed to establish that any error in the trial judge's directions had occasioned a miscarriage of justice. The appeal was therefore dismissed.

In summary, the High Court of Australia upheld the appellant's conviction, finding that the trial judge's directions were sufficient and that no miscarriage of justice had occurred. The court also denied the appellant's application for leave to appeal out of time. The appellant's conviction remains intact, and no further appeal will be heard in this matter.

Orders