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Pashley v The Queen

Pashley v The Queen

Case [2019] NSWCCA 119 12 June 2019

Appeal

Jurisdiction

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pashley v R [2019] NSWCCA 119
Hearing dates: 27 May 2019
Decision date: 12 June 2019
Before: Simpson AJA at [1]
Walton J at [3]
Adamson J at [4]
Decision:
(1) Leave granted to raise ground 3 in the appeal against conviction.

(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence refused.
Catchwords:
CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – whether trial judge obliged to give Shepherd direction regarding identification of vehicle on CCTV footage – identification of car not an indispensable intermediate step

CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – directions not in accordance with Bench Book – no deficiency identified

CRIME – appeals – appeal against conviction – alleged unreasonable verdict – verdicts open to jury – appeal dismissed
CRIME – appeal against sentence – question of parity – co-offender’s appeal against sentence not finally determined – leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW), ss 86, 97, 154A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited: Burrell v The Queen [2009] NSWCCA 163; (2009) 196 A Crim R 199
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mulato v R [2006] NSWCCA 282
R v Prasad (1979) 23 SASR 161
Re Director of Public Prosecutions (DPP) Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: Lawrence Pashley (Appellant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Appellant)
B Hatfield (Crown)
Solicitors:
Ross Hill & Associate Solicitors (Appellant)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2014/188642
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 September 2017

Before:

Williams ADCJ

File Number(s):

2014/188642

Judgment

SIMPSON AJA: I agree with Adamson J that the appeal against conviction should be dismissed for the reasons given by her Honour. With respect to the ground of appeal that asserts that the verdicts were unreasonable, I have considered the whole of the evidence and am satisfied that the verdicts were reasonably open to the jury, and that the Crown case established the appellant’s guilt of all charges.
With respect to sentence, I agree with Adamson J that the appellant has failed to sustain any of the grounds pleaded. That would ordinarily result in leave to appeal against sentence being granted, and the appeal dismissed. However, there is…

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 Pashley v The Queen

Details

AGLC: Pashley v The Queen [2019] NSWCCA 119
Case: [2019] NSWCCA 119
Decision Date: 12 June 2019

CaseChat Overview and Summary

The appeal before the court was brought by the appellant against his conviction and sentence for various criminal offences. The appellant was found guilty of offences including armed robbery, possession of a firearm, and being an accessory to a crime. The respondent, The Queen, sought to uphold the conviction and sentence imposed by the trial judge. The primary issue before the court was whether the trial judge erred in not directing the jury regarding the use of circumstantial evidence, specifically in relation to the identification of a vehicle on CCTV footage. The court also considered whether the directions given to the jury were in accordance with the Bench Book and whether the verdicts were unreasonable.

The court examined the legal principles surrounding the use of circumstantial evidence and the identification of a vehicle on CCTV footage. It was established that the identification of the vehicle was not an indispensable intermediate step in the chain of evidence. The court further assessed whether the trial judge was obliged to give a Shepherd direction to the jury regarding the identification of the vehicle. After a thorough analysis, the court found that the trial judge's directions were in accordance with the Bench Book and that no deficiency was identified. Consequently, the court concluded that the verdicts were open to the jury, and the appeal against conviction was dismissed.

The court also considered the appeal against the sentence imposed on the appellant. The appellant argued that there was a question of parity, as the sentence imposed was not consistent with the sentence of a co-offender whose appeal against sentence was not finally determined. However, the court found that the appellant's arguments did not demonstrate any error in the trial judge's assessment of the case. Therefore, the appeal against sentence was also dismissed, and the original sentence was upheld.

In summary, the court dismissed the appeal against both the conviction and the sentence. The trial judge's directions to the jury were found to be adequate, and the verdicts were deemed reasonable. The court found no error in the sentence imposed by the trial judge, and the appeal against sentence was accordingly dismissed.

Orders