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Michael v R

Michael v R

Case [2014] NSWCCA 2 5 February 2014

Conviction Appeal

Sentencing

Intent to Pervert Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Michael v R [2014] NSWCCA 2
Hearing dates: 26/11/2013
Decision date: 05 February 2014
Jurisdiction: Criminal
Before: Hoeben CJ at CL at [1]
Blanch J at [171]
Price J at [172 ]
Decision:
(1) Leave to appeal against conviction and sentence be granted but that the appeal be dismissed.
(2) The applicant's bail be revoked forthwith.
(3) The applicant be returned to custody on 5 February 2014 so that his non-parole period of imprisonment will expire on 30 January 2015 and the balance of his term will expire on 29 January 2016.

Catchwords: CRIMINAL LAW - CONVICTION APPEAL - doing an act intending to pervert the course of justice contrary to s319 Crimes Act 1900 - law clerk advising witness to lie to police - whether verdict was unreasonable - detailed analysis of evidence necessary - conceded inconsistencies in Crown case - whether necessary intent established by evidence - whether open to jury to be satisfied of guilt beyond reasonable doubt - not sufficient to identify material tending against guilt of accused - inconsistencies in evidence did not undermine Crown case - advantage of jury in assessing witnesses - conviction appeal dismissed - SENTENCE APPEAL - incorrect factual finding by sentencing judge - whether any potential effect on sentence - whether extra curial punishment taken into account - assessment of objective seriousness - whether sentence of fulltime imprisonment the only appropriate sentence - whether sentence manifestly excessive - appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) - s319
Criminal Appeal Act 1912 (NSW) - s6(1)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: Baxter v Regina [2007] NSWCCA 237; 173 A Crim R 284
BCM v The Queen [2013] HCA 48
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Col v R [2013] NSWCCA 302
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Hardie v Regina; Phillipsen v Regina [2012] NSWCCA 6
House v The King [1936] HCA 40; 55 CLR 499
Libke v R [2007] HCA 30; 230 CLR 559
M v R [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Makarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371
Nguyen v R [2004] NSWCCA 332; 149 A Crim R 343
Oudomvilay v Regina [2006] NSWCCA 275
R v Marinellis [2001] NSWCCA 328
Marracos v R [2008] NSWCCA 267
R v Mercael [2010] NSWCCA 36
R v Mulato [2006] NSWCCA 282
R v Pangallo [1991] 56 A Crim R 441
SKA v The Queen [2011] HCA 13; 243 CLR 400
Zamagias v R [2002] NSWCCA 17
Category: Principal judgment
Parties: Fabian Michael - Applicant
Regina - Respondent Crown
Representation: Counsel:
T Game SC/D Barrow - Applicant
S Dowling SC - Respondent Crown
Solicitors:
Senses Legal - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2011/332412

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 Michael v R

Details

AGLC: Michael v R [2014] NSWCCA 2
Case: [2014] NSWCCA 2
Decision Date: 05 February 2014

CaseChat Overview and Summary

The case of Michael v R involved the appellant, Michael, appealing against his conviction and sentence in the Court of Criminal Appeal. Michael was convicted of doing an act intending to pervert the course of justice, contrary to s319 of the Crimes Act 1900. The appeal concerned the sufficiency of the evidence to support the conviction, as well as the appropriateness of the sentence imposed. The court was required to determine whether the jury's verdict was unreasonable, whether the necessary intent was established by the evidence, and if the sentence was manifestly excessive.

The court examined the evidence presented at trial, noting the inconsistencies in the Crown's case. However, it held that the inconsistencies did not undermine the Crown's case and that it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. The court emphasised the advantage of the jury in assessing witnesses and their credibility. The court found that the appellant's law clerk advising a witness to lie to the police was sufficient evidence to support the conviction. The court also considered the appellant's arguments regarding the sentence, finding that the sentencing judge's incorrect factual finding did not have any potential effect on the sentence. The court held that the sentence of full-time imprisonment was the only appropriate sentence and was not manifestly excessive.

The Court of Criminal Appeal dismissed both the conviction and sentence appeals. The court held that the evidence was sufficient to support the conviction, and the sentence was not manifestly excessive. The court found that the appellant's arguments did not demonstrate any errors in the trial or sentencing process that would warrant a new trial or sentence. The conviction and sentence were upheld, and the appeal was dismissed.

Orders