Reported Decision:
144 A Crim R 67
New South Wales
Court of Criminal Appeal
CITATION: Regina v Ambrosi [2004] NSWCCA 23 HEARING DATE(S): 16/02/04 JUDGMENT DATE:
26 February 2004JUDGMENT OF: Levine J at 1; O'Keefe J at 2; Whealy J at 3 DECISION: The appellant's appeal against conviction be dismissed; and that leave be granted in relation to his application for leave to appeal against sentence; but that the appeal itself be dismissed. CATCHWORDS: Accomplices - when they should give evidence - Accomplices - warning - scope of re-examination - prior consistent statements - lies as consequences of guilt - directions - Henry guideline judgment - parity with co-offender. LEGISLATION CITED: Crimes Act NSW
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995CASES CITED: R v Booth (1982) 2 NSWLR 847 at 849-850
R v Sullivan (2003) NSWCCA 100 at para 95
R v Stewart (2001) 52 NSWLR 301 at 306, 309 (310) and 334
R v Yammine and Chami (2002) NSWCCA 289
R v Esposito (1998) 45 NSWLR 442 at 448-450; 482-483; 485B-486B
Edwards v The Queen (1993) 178 CLR 193 at 210-211
R v Dellapratona (1993) 31 NSWLR 123 at 150
R v Henry & Ors (1999) 46 NSWLR 346
R v Zamagias (2002) NSWCCA 17
R v Rutter (2003) NSWCCA 306
Postiglione v The Queen (1996) 189 CLR 295 at 301
The Queen v Lucas [1981] QB 720PARTIES :
Regina v Gary Esteve Ambrosi FILE NUMBER(S): CCA 60358/03 COUNSEL: Mr D. Howard - Crown
Mr G. Farmer - AppellantSOLICITORS: DDP - Crown
Jeffreys & Associates - Appellant
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/0149 LOWER COURT
JUDICIAL OFFICER :Judge Nield
60358/03
THURSDAY 26 February 2004LEVINE J
O’KEEFE J
WHEALY J
1 LEVINE J: I agree with the orders Whealy J proposes and his reasons therefor.
2 O’KEEFE J: I agree with the orders proposed by Whealy J and with his reasons.
3 WHEALY J: On 10 December 2002 the appellant pleaded not guilty to a charge of assault with intent to rob Thi Hinh Pham while armed with an offensive weapon namely a knife (Crimes Act NSW s 97(1)). The alleged offence occurred on 4 August 2001 at a convenience store situated at the corner of Brennan and Marlborough Streets, Smithfield. The offence carries a maximum penalty of 20 years.
4 The trial proceeded before a jury presided over by his Honour Judge Nield. The trial commenced on 10 December 2002. On 13 December 2002 the jury pronounced a verdict of guilty. The appellant was sentenced on 28 January 2003. His Honour imposed a term of imprisonment of six years and six months with a non-parole period of four years. By an addendum pronounced in chambers on 3 February 2003 the commencement date of the sentence was 6 June 2002. The effect of this was to provide that the non-parole period would expire on 5 June 2006. As will…
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- R v Ambrosi [2004] NSWCCA 23
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- [2004] NSWCCA 23
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CaseChat Overview and Summary
The legal issues before the court included whether the trial judge erred in allowing the co-accused to testify after the defendant, and if the co-accused's evidence was properly admitted despite prior inconsistencies. Additionally, the court had to consider the scope of re-examination of witnesses and the admissibility of prior consistent statements. The defence argued that the co-accused's testimony was an attempt to shift the blame, and the trial judge's direction to the jury was inadequate.
The court held that the trial judge did not err in allowing the co-accused to testify after the defendant, as the prior inconsistent statements did not render the evidence inadmissible. The court found that the trial judge's directions to the jury were sufficient, and the co-accused's evidence was relevant and admissible. The High Court emphasised that the scope of re-examination should not be overly restricted and that prior consistent statements can be used to rehabilitate a witness's credibility. The court also noted that lies as a consequence of guilt can be considered by the jury in assessing the credibility of witnesses.
The appeal was dismissed, and the conviction was upheld. The court found that the trial judge had properly exercised their discretion in allowing the co-accused to testify and that the evidence was properly admitted. The High Court confirmed that accomplices can give evidence against each other, and the scope of re-examination should not be overly restricted. The court also emphasised the importance of considering lies as a consequence of guilt when assessing witness credibility.
Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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