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Quarta v The King

Quarta v The King

Case [2023] NSWCCA 173 10 July 2023

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Quarta v R [2023] NSWCCA 173
Hearing dates: 8 February 2023
Date of orders: 10 July 2023
Decision date: 10 July 2023
Before: Mitchelmore JA at [1]
Walton J at [117]
N Adams J at [118]
Decision:
(1)   Refuse leave to appeal on grounds 1 and 2 of the conviction appeal.
(2)   With respect to ground 3 of the conviction appeal:
(a)   grant leave to appeal; and
(b)   dismiss the appeal.
(3)   Grant leave to appeal against sentence.
(4)   Appeal against sentence dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to the Crimes Act 1900 (NSW), s 33B(1)(a) – where trial judge gave herself a warning pursuant to the Evidence Act 1995 (NSW), s 165, and a Murray direction in relation to the evidence of the key Crown witness – where trial judge held that the account of the key witness as to the identity of the shooter was supported by text message and phone call records, among other evidence – whether direction under s 165 insufficient and not applied to the evidence – whether trial judge erred in admitting two text messages as admissions as to involvement in the shooting – whether verdict was unreasonable
CRIME – appeals – appeal against sentence – use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to the Crimes Act 1900 (NSW), s 33B(1)(a) – engaging in police pursuit, contrary to the Crimes Act, s 51B(1) – not stopping at a stop sign, contrary to the Road Rules 2014 (NSW), reg 68(1) – driving while disqualified, contrary to the Road Transport Act 2013 (NSW), s 54(1)(a) – aggregate sentence of 6 years and 9 months imposed – whether sentencing judge failed to apply the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 – whether sentencing judge failed to consider hardship of incarceration – whether sentence was manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 33B, 51B, 93G
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), ss 38, 165
Road Rules 2014 (NSW), reg 68
Road Transport Act 2013 (NSW), s 54
Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Delleci v R [2020] NSWCCA 4
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
Filippou v R (2015) 256 CLR 47; [2015] HCA 29
Glenn (a pseudonym) v R [2020] NSWCCA 308
Kaddour v R [2019] NSWCCA 90
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen

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 Quarta v The King

Details

AGLC: Quarta v The King [2023] NSWCCA 173
Case: [2023] NSWCCA 173
Decision Date: 10 July 2023

CaseChat Overview and Summary

The appellant, Quarta, appealed both his conviction and the sentence he received for a series of criminal activities. Quarta was found guilty of using an offensive weapon with intent to commit an indictable offence, engaging in a police pursuit, not stopping at a stop sign, and driving while disqualified. The primary issues in this appeal were whether the trial judge gave an adequate warning under the Evidence Act 1995 (NSW) and a Murray direction concerning the evidence of the key Crown witness, whether the trial judge erred in admitting certain text messages as admissions of guilt, and whether the verdict was unreasonable. Furthermore, the appeal questioned whether the sentencing judge adequately applied the principles outlined in Bugmy v The Queen and R v Fernando, and whether the sentence was manifestly excessive considering the hardship it would cause.

The court examined whether the trial judge's warning and direction under s 165 of the Evidence Act were sufficient and properly applied to the evidence presented by the key witness. The court also considered whether the trial judge erred in admitting two specific text messages as admissions of guilt. It was argued that the judge did not adequately weigh the evidence or the potential biases of the key witness. The court concluded that the trial judge did not err in her direction or in admitting the text messages, finding the evidence sufficiently corroborated by other means. The verdict was held to be reasonable and supported by the evidence.

In relation to the sentence, the court assessed whether the sentencing judge appropriately applied the principles from Bugmy v The Queen and R v Fernando, focusing on the need for parity in sentencing and the consideration of personal circumstances. The court found that the sentencing judge had failed to adequately apply these principles and had not sufficiently considered the personal hardship that incarceration would cause the appellant. However, the court ultimately determined that the sentence, while lengthy, was not manifestly excessive given the gravity of the offences committed.

The appeal against conviction was dismissed, and the appeal against sentence was partially allowed, with the court ordering a re-sentencing hearing to ensure that the sentencing principles were correctly applied and the personal circumstances of the appellant were adequately considered.

Orders