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Palmer v R

Palmer v R

Case [2018] NSWCCA 205 21 September 2018

Appeal

Jurisdiction

Admissibility of Evidence

Rational Basis

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Palmer v R [2018] NSWCCA 205
Hearing dates: 10 September 2018
Decision date: 21 September 2018
Before: Basten JA at [1];
McCallum J at [74];
Bellew J at [75]
Decision:
(1) With respect to ground 2, refuse the appellant leave to appeal pursuant to the Criminal Appeal Rules, r 4.

(2)   With respect to ground 1, grant the appellant leave to appeal.

(3)   Dismiss the appeal.

(4)   Vary the sentence imposed in the District Court so that it provides:
(a)   With respect to count 2 on the indictment, sentence the offender to a term of imprisonment for 3 years, comprising a non-parole period of 18 months to commence from the date of these orders or such later date on which the appellant is first taken into custody, together with a balance of term of 18 months.
(b) Note that, either pursuant to the direction given by the trial judge pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the offender is entitled to be released at the expiration of the non-parole period to serve the remainder of his sentence on parole.
(c)   Note further that the earliest release date pursuant to this sentence is 20 March 2020 or the date 18 months from the date the offender is taken into custody, if that be not the date of the orders.
Catchwords:
CRIME – conviction appeal – unreasonable verdicts – whether conviction inconsistent with acquittal on another count – whether rational basis upon which jury could distinguish counts – relevance of disproportion between time taken for trial and time jury reserved – relevance of trial judge’s assessment of verdict
CRIME – conviction appeal – leave to appeal – jury directions – apology in recorded telephone conversation between complainant and accused – whether conclusion apology was an admission reasonably open to jury – whether objection taken to direction at trial – whether leave required – whether leave should be granted – Criminal Appeal Rules, r 4
Legislation Cited:
Crimes Act 1900 (NSW), ss 61I, 61L
Bail Act 2013 (NSW), ss 22, 61, 62
Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Criminal Appeal Act 1912 (NSW), ss 2, 5, 11, 18
Criminal Appeal Rules, rr 4, 20
Cases Cited: ARS v R [2011] NSWCCA 266
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Cottrell v R [2012] NSWCCA 117
Drysdale v The Queen [2015] NSWCCA 135; 251 A Crim R 557
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mansaray v R [2015] NSWCCA 40
McCann v R [2014] NSWCCA 79
R v Kirkman (1987) 44 SASR 591
R v Sloane [2001] NSWCCA 421; 126 A Crim R 188
Rolfe v The Queen [2007] NSWCCA 155; 173 A Crim R 168

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 Palmer v R

Details

AGLC: Palmer v R [2018] NSWCCA 205
Case: [2018] NSWCCA 205
Decision Date: 21 September 2018

CaseChat Overview and Summary

The case of Palmer v R involved an appeal against a conviction by the appellant, Palmer, who was convicted of certain offences but acquitted on another count. The appeal raised questions about the consistency of the verdicts and whether there was a rational basis for the jury to distinguish between the counts. Additionally, the appeal considered whether the disproportion between the time taken for the trial and the time the jury reserved their verdicts was relevant to the appeal, as well as the significance of the trial judge’s assessment of the verdict.

The primary legal issues the court needed to address were whether the conviction was inconsistent with the acquittal on another count, and if there was a rational basis for the jury to distinguish between the counts. The court also considered whether the disproportion between the trial duration and the time taken by the jury to deliberate was relevant. Furthermore, the court examined whether the trial judge’s assessment of the verdict was pertinent to the appeal, and whether leave to appeal was required due to potential errors in jury directions regarding the interpretation of an apology made in a recorded telephone conversation between the complainant and the accused.

The court held that the conviction was not inconsistent with the acquittal on another count, as there was a rational basis for the jury to distinguish between the counts. The disproportion between the trial duration and the jury’s deliberation time was deemed irrelevant to the appeal. The trial judge’s assessment of the verdict did not provide a basis for the appeal. Additionally, the court found that leave to appeal was not required as the potential error in jury directions did not undermine the overall outcome of the trial. The appeal was ultimately dismissed.

The court made no further orders beyond dismissing the appeal. The decision underscored the importance of ensuring that the jury’s verdicts are rational and consistent, and that the trial process was conducted fairly, particularly when considering the time taken for deliberation and the trial judge’s assessment of the verdict. The court’s ruling clarified that significant discrepancies in trial duration and jury deliberation times do not necessarily warrant an appeal, and that objections to jury directions must be timely raised to warrant leave to appeal.

Orders