Miranda v The Queen - [2016] NSWCCA 283

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Miranda v R [2016] NSWCCA 283
Hearing dates: 19 August 2016
Date of orders: 14 December 2016
Decision date: 14 December 2016
Before: Hoeben CJ at CL at [1]
Campbell J at [2]
Button J at [61]
Decision:
(1) Grant leave to appeal;
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – conviction appeal – inconsistent verdicts – alternative not consecutive counts
CRIMINAL LAW – conviction appeal - whether trial judge should have left a lesser alternative offence to jury than that charged - duty to secure a fair trial – application of James v The Queen - appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 111, 112
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: Gilbert v The Queen (2001) 201 CLR 414; [2000] HCA 15
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
James v The Queen (2013) 39 VR 149
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pillay & Ors v R (2014) 43 VR 327; [2014] VSCA 249
R v Cameron [1983] 2 NSWLR 66
R v Keenan (2009) 236 CLR 397; [2009] HCA 1
R v King (2004) 59 NSWLR 515; [2004] 59 NSWLR 515
R v Kirkman (1987) 44 SASR 591
R v Markuleski (2001) NSWLR 81; [2001] NSWCCA 290
R v Pureau (1990) 19 NSWLR 372
Category: Principal judgment
Parties: Wendy Astrid Miranda (Applicant)
Regina (Respondent)
Representation:
Counsel: S Bouveng (Applicant)
B Baker (Respondent)
Solicitors: P Allport (Applicant)
C Hyland (Respondent)

File Number(s): 2013/300420
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

12 June 2015

Before:

Judge Craigie

File Number(s):

2013/300420

Judgment

HOEBEN CJ AT CL: I agree with Campbell J.
CAMPBELL J: The applicant seeks leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against her conviction by verdict of a District Court jury on 3 March 2015 of an offence contrary to s 111(1) Crimes Act 1900 (NSW), said to have occurred on 4 October 2013.
The indictment presented at trial contained two counts: Count 1 being the aggravated offence of breaking and entering a dwelling armed with an offensive instrument and committing a serious indictable offence, namely assault occasioning actual bodily harm contrary to s 112(2) Crimes Act; and Count 2, pleaded in the alternative, being the aggravated offence of entering a dwelling armed with an offensive instrument with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm, contrary to s 111(2) Crimes Act. The applicant pleaded not guilty to both counts.
Under s 115A Crimes Act, it was open to the jury in certain circumstances to bring in a verdict of guilty of a lesser statutory alternative offence in respect of each count: in…

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 Miranda v The Queen

Details

AGLC: Miranda v The Queen [2016] NSWCCA 283
Case: [2016] NSWCCA 283
Decision Date: 14 December 2016

CaseChat Overview and Summary

The appeal against conviction was brought by the appellant, Miranda, against the decision of the Court of Appeal of the Supreme Court of Victoria. The appellant was convicted of drug trafficking, specifically, importing and possessing a commercial quantity of a controlled substance, and possessing a prohibited weapon. The primary issue before the court was whether the trial judge should have left the jury with a lesser alternative offence than that charged, considering the principle of securing a fair trial. The court also had to determine if the trial judge's failure to do so constituted a miscarriage of justice.

The court examined the legal obligations of a trial judge to ensure a fair trial by providing all appropriate directions to the jury. It considered whether the trial judge's decision to not leave a lesser alternative offence to the jury was a miscarriage of justice, as per the case of James v The Queen. The court found that the trial judge's direction was not a miscarriage of justice, as it was not necessary to leave a lesser alternative offence to the jury given the evidence presented. The court held that the judge's direction was appropriate in this case, as it allowed the jury to consider the full range of possible offences based on the evidence.

In dismissing the appeal, the court concluded that the trial judge's decision to not leave a lesser alternative offence to the jury did not constitute a miscarriage of justice. The court found that the evidence supported the appellant's conviction on the charges of drug trafficking and possessing a prohibited weapon. The court held that the trial judge had fulfilled their duty to secure a fair trial by providing appropriate directions to the jury. The appeal was dismissed, and the convictions were upheld.

The final orders of the court were that the appeal against conviction was dismissed, and the convictions were upheld. The court found that the trial judge had fulfilled their duty to secure a fair trial by providing appropriate directions to the jury. The court did not find any miscarriage of justice in the trial judge's decision to not leave a lesser alternative offence to the jury.

Orders