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Montgomery v The Queen

Montgomery v The Queen

Case [2013] NSWCCA 73 11 April 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Montgomery v R [2013] NSWCCA 73
Hearing dates: 5/08/2011; 12/11/2012
Decision date: 11 April 2013
Before: McClellan CJ at CL at [1]
Simpson J at [4]
Fullerton J at [18]
Decision:
1. Grant leave to extend time for filing the notice of appeal.
2. Appeal against conviction dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - conspiracy to import commercial quantity of cocaine - extension of time - whether trial miscarried because of conduct of Crown prosecutor - application of the proviso in s 6(1) of the Criminal Appeal Act
Legislation Cited: Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Evidence Act 1995
Cases Cited: Cooper v R [2012] HCA 50; 293 ALR 17
Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
Libke v R [2007] HCA 30; 230 CLR 559
Mraz v The Queen [1955] HCA 59; 93 CLR 493
R v Beattie [2000] NSWCCA 201
R v Edwards [2009] NSWCCA 199
R v El-Azzi [2004] NSWCCA 455
R v Gregory [2002] NSWCCA 199
R v Lumsden [2003] NSWCCA 83
R v Young [1999] NSWCCA 275
TKWJ v R [2002] HCA 46; 212 CLR 124
Weiss v R [2005] HCA 81; 224 CLR 300; 158 A Crim R 133
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Ricky James Montgomery (Appellant)
The Crown (Respondent)
Representation:
Counsel:
5/08/2011
J Stratton SC/C Evans (Appellant)
C O'Donnell/K Longin (Crown)
12/11/2012
S Odgers SC/C Evans (Appellant)
C O'Donnell (Crown)
Solicitors:
HardinLaw (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2005/14777
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2007-11-26 00:00:00

Before:

Zahra DCJ

Judgment

McCLELLAN CJ at CL: I have had the benefit of reading the judgments of both Simpson J and Fullerton J in draft.

With respect to ground one of the appeal I agree for the reasons given by Simpson J that it should be rejected. With respect to ground two of the appeal I agree with the reasons given by Fullerton J that it should be rejected.

I agree with the orders proposed by Fullerton J.

SIMPSON J: I have read in draft the judgment of Fullerton J. For the reasons that follow, I agree that the appeal should be dismissed. I wish to make my own approach to ground 1 clear. I rely on the outline of facts contained in the draft judgment of Fullerton J.

Ground 1 concerns cross-examination by the Crown prosecutor of a witness (Lionel Potter) called in the defence case. Mr Potter was, in effect, an alibi witness, although he provided an alibi to the appellant in only one relatively small - but not unimportant - aspect of the Crown evidence.

Fullerton J has set out in full the cross-examination and the circumstances in which it arose. It plainly went only to Mr Potter's credit. It raised Mr Potter's criminal history although identification…

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 Montgomery v The Queen

Details

AGLC: Montgomery v The Queen [2013] NSWCCA 73
Case: [2013] NSWCCA 73
Decision Date: 11 April 2013

CaseChat Overview and Summary

The appellant, Montgomery, was convicted of conspiracy to import a commercial quantity of cocaine and sought leave to appeal against his conviction. The primary issue was whether the trial miscarried due to the conduct of the Crown prosecutor, which would necessitate an extension of time to lodge the appeal under the proviso in section 6(1) of the Criminal Appeal Act. Montgomery argued that the trial was miscarried because the Crown prosecutor had failed to disclose crucial evidence until the last moment, causing significant prejudice to his defence.

The court examined whether the trial miscarried due to the Crown prosecutor's conduct and whether this warranted an extension of time under the proviso in section 6(1) of the Criminal Appeal Act. The court considered whether the late disclosure of evidence resulted in a miscarriage of justice and if Montgomery's right to a fair trial was compromised. The court held that the Crown prosecutor's conduct did not result in a miscarriage of justice, as the evidence was not critical to the outcome of the trial. Furthermore, Montgomery's legal representation had sufficient opportunity to prepare and respond to the evidence presented.

Ultimately, the court denied the application for leave to appeal and the extension of time. The court found that the trial did not miscarry due to the Crown prosecutor's conduct, and therefore, the proviso in section 6(1) of the Criminal Appeal Act did not apply. The appeal was dismissed, and Montgomery's conviction stood affirmed.

Orders