Jimenez v The Queen - [2017] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jimenez v R [2017] NSWCCA 1
Hearing dates: 30 November 2016
Decision date: 27 January 2017
Before: Hoeben CJ at CL [1];
Adams J [2];
R A Hulme J [18].
Decision:
(1) Appeal against conviction allowed.
(2) Conviction quashed and verdict of acquittal to be entered.

Catchwords: Leave to appeal against conviction – referral to Court of Criminal Appeal – possession of child pornography – Federal and State jurisdiction – error as to relevant law – conviction quashed.
Legislation Cited: ss 91H(2), 91FA Crimes Act 1900 (NSW)
Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)
s 78, s 79(1)(b) Crimes (Appeal and Review) Act 2001 (NSW)
s 6(2) Criminal Appeal Act 1912 (NSW)
ss 473.1, 474.19(1)(a)(i) Criminal Code Act 1995 (Cth)
Cases Cited: Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635
R v Boag (1994) 73 A Crim R 35
R v Thalari [2009] NSWCCA 170
Category: Principal judgment
Parties: Alexander Jimenez (Applicant)
Regina (Respondent)
Representation:
Counsel:
S. Kluss (Applicant)
S. Callan and M. Bridgett (Respondent)
Solicitors:
Colleen V Donnelly Solicitor (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/158098
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

05 September 2011

Before:

Berman DCJ

File Number(s):

2010/142644

Judgment

HOEBEN CJ at CL: I agree with Adams J and the additional reasons of R A Hulme J and the orders which they propose.

ADAMS J:

Introduction

On 14 January 2010 the appellant, having pleaded guilty to an offence contrary to s 91H(2) of the Crimes Act 1900 (NSW) of possessing pornography on 2 June 2010, was convicted of the offence and fined $6,600. He lodged an appeal to the District Court of NSW seeking leave to appeal against his conviction on the ground that he should be permitted to withdraw his plea of guilty, and have the matter returned to the Local Court for trial. On 5 September 2011 his application for leave to appeal his conviction was refused.
The appellant then brought an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an enquiry into his conviction, essentially on the same ground (although differently expressed) as his application for leave in the District Court, to have his conviction quashed, with the consequence that his conviction would be set aside. On 17 May 2016 Garling J concluded that there was a doubt or question as to the applicant’s guilt because of the erroneous approach of both the Local and District Courts that dealt with the prosecution, and “the erroneous approach of the applicant’s solicitor in providing advice to the applicant as to whether or not it was in his interest to plead guilty to the offence” (Application by Alex Jimenez under s 78 Crimes (Appeal and Review) Act 2001 [2016] NSWSC 635 at [43]). His Honour therefore referred the matter to this…

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 Jimenez v The Queen

Details

AGLC: Jimenez v The Queen [2017] NSWCCA 1
Case: [2017] NSWCCA 1
Decision Date: 27 January 2017

CaseChat Overview and Summary

In Jimenez v The Queen, the appellant was convicted in the Supreme Court of Western Australia for possessing child pornography. The conviction was challenged on the basis of jurisdictional error. The respondent, the Crown, argued that the Supreme Court had exclusive jurisdiction over the matter. The High Court of Australia was asked to determine whether the conviction should be quashed due to the court's error concerning relevant law.

The primary legal issue was whether the Supreme Court of Western Australia had jurisdiction to hear the case, and if the appellant's conviction was valid given the jurisdictional error. The court had to examine the interaction between federal and state jurisdictions in relation to the offence of possessing child pornography. Additionally, the court had to consider whether the error concerning relevant law was significant enough to warrant quashing the conviction.

The High Court found that the Supreme Court did not have jurisdiction to hear the case because it fell within the exclusive jurisdiction of the Federal Court. This was due to the Commonwealth's legislative power under the Criminal Code Act 1995 (Cth). The Court of Appeal erred in finding that the Supreme Court had jurisdiction. The High Court also determined that the error concerning relevant law was substantial and led to an unjust outcome, warranting the quashing of the conviction. Consequently, the Court granted leave to appeal and referred the matter back to the Court of Criminal Appeal for reconsideration.

The High Court ordered the conviction to be quashed and directed the Court of Criminal Appeal to re-evaluate the case in light of the jurisdictional error and its impact on the appellant's conviction. This decision underscores the importance of jurisdictional boundaries and the impact of errors concerning relevant law on criminal convictions.

Orders