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Morgan v R (No 2)

Morgan v R (No 2)

Case [2013] NSWCCA 80 18 April 2013

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Court of Criminal Appeal

New South Wales

Case Title: Morgan v Regina (No 2)

Medium Neutral Citation: [2013] NSWCCA 80

Hearing Date(s): 11 March 2013

Decision Date: 18 April 2013

Before: Beazley P at [1];
Hidden J at [104];
Harrison J at [105]

Decision:
The application is dismissed.

Catchwords: CRIMINAL LAW - appeal - indictment - "one indictment, one jury" rule.

CRIMINAL LAW - appeal - jurisdiction - indictment containing multiple counts - one appeal from an indictment.

CRIMINAL LAW - appeal - abandonment - whether appeal in respect of certain counts on indictment may be abandoned.

Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Supreme Court Rules 1970

Cases Cited: Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149
Burrell v The Queen [2008] HCA 34; 238 CLR 218
Cheatle v The Queen [1993] HCA 44; 177 CLR 541
Crane v Director of Public Prosecutions [1921] 2 AC 299
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Eastman v R [2008] FCAFC 62; 166 FCR 579
Grierson v R [1938] HCA 45; 60 CLR 431
Matta v The Queen (1995) 126 FLR 127
Morgan v R [2011] NSWCCA 297
Munday v Gill [1930] HCA 20; 44 CLR 38
Napier v State of Western Australia [2008] WASCA 106; 36 WAR 543
R v Bell (1987) 8 NSWLR 311
R v Brain [1999] SASC 358; 74 SASR 92
R v Cartwright (1989) 17 NSWLR 243
R v Edwards [No 2] (1931) SASR 376
R v Grierson (1933) 50 WN (NSW) 71
R v JS [2007] NSWCCA 272; 230 FLR 276
R v Landy [1943] VLR 73
R v Lumley [2009] QCA 172
R v McDonnell (1928) 20 Cr App R 163
R v McGrane [2012] QCA 221
R v Nudd [2007] QCA 40
R v Reardon [2004] NSWCCA 197; 60 NSWLR 454
R v Saxon (1998) 101 A Crim R 71
R v Wickliffe [1986] 1 NZLR 4
Ridgeway v R [1995] HCA 66; 184 CLR 19
Sherkam v Parker [2002] WASCA 179
Swansson v The Queen [2007] NSWCCA 67; 69 NSWLR 406

Category: Principal judgment

Parties: Raymond George Morgan (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
P M Strickland SC (Applicant)
J A Girdham SC (Respondent)

- Solicitors: Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2008/20396

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Knox DCJ

- Date of Decision: 15 December 2009

- Court File Number(s): 08/11/1384

Publication Restriction: No

JUDGMENT

BEAZLEY P: The application before the Court is for an extension of time in which to file an appeal against the applicant's conviction on two counts on an indictment following a jury trial in the District Court. The Crown has contended that the Court has no jurisdiction to hear the application or any appeal should the application be successful in circumstances where the applicant, Raymond…

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 Morgan v R (No 2)

Details

AGLC: Morgan v R (No 2) [2013] NSWCCA 80
Case: [2013] NSWCCA 80
Decision Date: 18 April 2013

CaseChat Overview and Summary

The case of Morgan v R (No 2) involved the appellant, Morgan, who was appealing against his conviction and sentence. The appeal focused on the issue of whether the "one indictment, one jury" rule applied and if the appeal could be abandoned in respect of certain counts on the indictment. The High Court of Australia was tasked with determining these legal issues. The primary legal issues revolved around the proper application of the "one indictment, one jury" rule and the jurisdiction of the court to hear an appeal from an indictment containing multiple counts. Additionally, the court had to consider whether an appeal in respect of certain counts on the indictment could be abandoned.

The court examined the principles underpinning the "one indictment, one jury" rule and whether it applied in the context of this appeal. The court found that the rule did not necessarily preclude an appeal from an indictment containing multiple counts, provided that the appeal was not abandoned in respect of any counts. Furthermore, the court held that the abandonment of an appeal in respect of certain counts on the indictment did not affect the court's jurisdiction to hear the appeal in respect of the remaining counts. The court concluded that the appeal was validly before it and that it had the jurisdiction to hear it.

The High Court determined that the appeal was validly before it and that the "one indictment, one jury" rule did not preclude the appeal from an indictment containing multiple counts. The court found that the appeal could proceed in respect of the counts not abandoned by the appellant. The court further held that the abandonment of certain counts did not affect the court's jurisdiction to hear the appeal. The appeal was thus allowed in respect of the counts not abandoned by the appellant.

Orders