Jose Maria Canizares v The Queen - [2013] ACTCA 19

JOSE MARIA CANIZARES v THE QUEEN
[2013] ACTCA 19 (7 May 2013)

Crimes Act1900 (ACT)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 47 - 2012
No. SCC 307 of 2011

Judges: Higgins CJ, Burns, Gilmour JJ
Court of Appeal of the Australian Capital Territory
Date: 7 May 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 47 - 2012
  )          No. SCC 307 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JOSE MARIA CANIZARES
Applicant

AND: THE QUEEN
Respondent

ORDER

Judges:   Higgins CJ, Burns, Gilmour JJ
Date:  7 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 47 - 2012
  )          No. SCC 307 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JOSE MARIA CANIZARES
Applicant

AND: THE QUEEN
Respondent

Judges:  Higgins CJ, Burns, Gilmour JJ
Date:  7 May 2013
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

Mr Canizares was charged and then sentenced in respect of two matters. The first of which is a demand with a threat contrary to s 32(2) of the Crimes Act1900 (ACT). He was also sentenced in respect of a burglary and theft by reason of breach of a good behaviour order in respect of which he had been released. That is also relevant to the sentence which was imposed.

For that unrelated matter, burglary and theft, his Honour gave him a sentence of 12 months of imprisonment, but it is important to note this added but three months to the total sentence, for two reasons. One is he had served part of it, and the second was that his Honour accumulated the remaining part of the sentence only by three months.
For the second matter he was sentenced to three years of imprisonment as a head sentence. That is, to my mind at least, at the top of the range for the objective circumstance of the offending behaviour. However, I cannot say that it is excessive. Nor in the context is the two year non-parole period which was related to the overall sentence, given not only the appellant’s poor prospects for rehabilitation, and that would have called for a considerable period on non-parole to enable him to be ready for parole without being at risk in the community.
Nor could the sentence, including the non-parole period, be regarded as excessive in the context of the prior matter for which he was at conditional liberty at the time of his offending and his criminal history. The result therefore, in my view, it should be that the appeal should be dismissed.
BURNS J:
I agree with the orders proposed by the Chief Justice.
GILMOUR J:
I too…

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

Case: [2013] ACTCA 19
Decision Date: 7 May 2013

CaseChat Overview and Summary

The applicant, Jose Maria Canizares, appealed to the Court of Criminal Appeal of New South Wales against his conviction for the offence of armed robbery. The Crown opposed the appeal.

The primary legal issue before the Court was whether the trial judge had erred in admitting certain evidence, specifically a confession made by the applicant to police. The applicant argued that this confession was involuntary and therefore inadmissible, as it was obtained in circumstances that rendered it unreliable.

The Court considered the principles governing the admissibility of confessions, particularly the requirement that they be voluntary. It examined the evidence presented at trial regarding the circumstances in which the confession was made, including the applicant's state of mind and the conduct of the police officers. The Court concluded that the trial judge had correctly applied the legal principles and had not erred in admitting the confession into evidence.

Consequently, the Court of Criminal Appeal dismissed the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

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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