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Madubuko v R

Madubuko v R

Case [2011] NSWCCA 135 8 June 2011

Appeal

Breach of Contract

Unconscionable Conduct

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MADUBUKO, Henry Ugo v R [2011] NSWCCA 135
Hearing dates: 8 June 2011
Decision date: 08 June 2011
Before: Hodgson JA at [1], [41]; Hoeben J at [39]; Grove AJ at [40]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW - Appeal against conviction - Whether separate trials of co-accused should have been ordered - Applicable principles - Whether there was a significant risk that evidence inadmissible against one accused could have turned a potential acquittal into a conviction.
Legislation Cited: Criminal Appeal Act 1912 s 6(1)
Cases Cited: Evans v R [2006] NSWCCA 277
Friend v R [2007] NSWCCA 41
Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
Kennedy v R [2008] NSWCCA 21; (2008) 181 A Crim R 185
KRM v R [2001] HCA 11; (2001) 206 CLR 221
R v Middis (Supreme Court of New South Wales, Hunt J, 27 March 1991, unreported)
R v Pham [2004] NSWCCA 190
R v Piller (1995) 86 A Crim R 249
Symss v R [2003] NSWCCA 77
Category: Principal judgment
Parties: Henry Ugo MADUBUKO (appellant)
CROWN (respondent)
Representation: Dr Bernard Glennon (appellant)
David Jordan (respondent)
David H Cohen & Co. (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2008/00008434004
Decision under appeal

Date of Decision:

2008-11-05 00:00:00

Before:

Judge J C Nicholson SC

File Number(s):

2008/8434

Judgment

HODGSON JA: On 13 October 2008 the appellant and two co-accused, Ms Saripah Syed Basri and Mr Ifeanyi Okonkwo, were arraigned before Nicholson DCJ on drug charges.

The charge against Ms Basri was that she, on 25 February 2008, at Sydney New South Wales, did import a substance, the substance being a border-controlled drug, namely, heroin, and the quantity imported being a commercial quantity.

The charge against the appellant and against Mr Okonkwo was that they, on 25 February 2008, at Sydney New South Wales, did attempt to possess a substance, being a border-controlled drug, namely heroin, which had been unlawfully imported and the quantity imported being a commercial quantity.

All accused pleaded not guilty, and they were tried together before Nicholson DCJ and a jury.

On 4 November 2008, the jury returned verdicts of guilty against all three co-accused. The appellant was sentenced to imprisonment for six years six months, with a non-parole period of four years two months, to date from 25 February 2008. The appellant appeals from his conviction.

At the trial, there was a statement of facts agreed to by the three co-accused and the Crown:

1. On 12 February 2008 Ms Basri was issued with a 6 month visa allowing her to enter India.

2. On 13 February 2008 Ms Basri was issued with an airline ticket by Festive Travels S.B. in Jalan Tun Sambathan, Brickfields Kuala Lumpur for flights booked:

a. Air India flight 433 from Kuala Lumpur to Delhi on 14 February 2008; and

b. Air India flight 432 from Delhi to Kuala Lumpur on 18 March 2008.

3. On…

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 Madubuko v R

Details

AGLC: Madubuko v R [2011] NSWCCA 135
Case: [2011] NSWCCA 135
Decision Date: 08 June 2011

CaseChat Overview and Summary

The appeal before the court involved a conviction in criminal proceedings against the appellant, Madubuko, by the Supreme Court of New South Wales. The nature of the dispute was the propriety of conducting separate trials for the appellant and his co-accused, and whether there was a significant risk that evidence inadmissible against one accused could have influenced the outcome of the trial against the other.

The legal issues before the court were whether the trial judge should have ordered separate trials for the co-accused, and if there was a substantial risk that evidence inadmissible against one could have turned a potential acquittal into a conviction. The court had to consider the principles governing the separation of trials for co-accused and the potential impact of inadmissible evidence on the fairness of the trial.

The court determined that the trial judge did not err in declining to order separate trials. It was held that there was no significant risk that inadmissible evidence against one accused could have affected the trial of the other. The court considered the nature of the evidence, the strength of the prosecution's case, and the potential impact on the fairness of the trial. The reasoning of the trial judge was upheld, and it was found that there was no miscarriage of justice that would warrant a separate trial.

The final orders of the court were that the appeal against conviction was dismissed, and the conviction was upheld. The decision confirmed the trial judge's approach to the separation of trials and the assessment of the risk posed by inadmissible evidence. The appellant's conviction was therefore maintained, and no separate trials were ordered.

Orders