Korgbara v The Queen - [2010] NSWCCA 176

New South Wales
Court of Criminal Appeal

CITATION: Korgbara v R [2010] NSWCCA 176
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 July 2010

JUDGMENT DATE:
11 August 2010

JUDGMENT OF: Allsop P at 1; Hulme J at 2; McCallum J at 5

DECISION: (1) that the time within which the application for leave to appeal against sentence may be filed be extended to the date on which the notice was received in the Registry.
(2) that leave to appeal be granted.
(3) that the appeal be allowed.
(4) that the sentences imposed by Ellis DCJ on 13 June 2007 be quashed.
(5) that the matter be remitted to the District Court for re-sentence.

CATCHWORDS: CRIMINAL LAW - SENTENCE - statement tendered as agreed facts - applicant not in fact given opportunity to read statement before being asked to sign it - statement containing allegations as to inferences to be drawn from objective material - sentencing process miscarried.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

PARTIES: Ozone Emeka Korgbara
Regina

FILE NUMBER(S): CCA 2007/3032

COUNSEL: P. Miller (Respondent/Crown)
In person

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/21/0031

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 13 June 2007

- 14 -

2007/3032

ALLSOP P
RS HULME J
MCCALLUM J

11 August 2010

OZONE EMEKA KORGBARA v R

Judgment

1 ALLSOP P: I agree with both RS Hulme J and McCallum J. Their Honours' reasons reflect mine for the making of the orders.

2 RS HULME J: I agreed with the orders made on 30 July 2010 set out in the judgment of McCallum J and I agree with her Honour’s reasons for making those orders.

3 The circumstances detailed by her Honour lead inevitably to the inference that the Applicant’s signature to the “Agreed Statement of Facts” was regarded as important and the case was not one where Counsel’s authority to bind his or her client was to be exercised or relied upon. In that situation justice required that there be free and fully informed agreement by the Applicant.

4 The suggestion in the Applicant’s Statutory Declaration that he should have been provided with an interpreter when compared with evidence from Ms Hall that the Applicant had never once expressed a need for an interpreter and, by virtue of the appropriateness of his answers, he appeared to be able to understand what she was saying to him casts appreciable doubt on the Applicant’s credibility. Nevertheless when regard is had not only to his evidence concerning the agreed Statement of Facts but also to the evidence of Ms Hall on that topic and the other events at the hearing referred to by McCallum J, the most probable inference is that the Applicant was deprived of the chance to give fully informed consent to the Agreed Statement…

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.

Keep reading for free

Create a free CaseChat account to read Korgbara v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWCCA 176
Decision Date: 11 August 2010

CaseChat Overview and Summary

The case of Korgbara v The Queen involved the applicant, who was convicted of various criminal charges, and the Crown, represented by the Queen. The primary dispute centred on the sentencing process, specifically the manner in which the applicant's statement was obtained and used in the sentencing proceedings. The matter was brought before the court to determine whether the process adhered to the principles of natural justice and fairness, and whether the sentence should be quashed as a result of any procedural irregularities.

The court was tasked with examining whether the applicant had been given an adequate opportunity to read and understand the statement before being asked to sign it. Additionally, the court needed to determine if the content of the statement, which included allegations based on inferences drawn from objective material, was appropriately considered during the sentencing process. The legal issues thus revolved around the procedural fairness of the sentencing process and whether the applicant's rights were upheld.

The court found that the applicant had not been given a sufficient opportunity to read the statement before signing it, and that the statement contained allegations that were not adequately substantiated. This failure to provide the applicant with an opportunity to review the statement before signing it constituted a procedural error. Furthermore, the court concluded that the sentencing process miscarried due to these irregularities, leading to an unfair outcome. Consequently, the court determined that the sentence should be quashed.

In conclusion, the court quashed the sentence and ordered that the matter be remitted to a different sentencing court for re-sentencing, ensuring that the applicant is afforded a fair and just process. This decision underscores the importance of procedural fairness and the need for strict adherence to legal principles in criminal sentencing.

Orders