R v Ambrosi - [2004] NSWCCA 23

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 2004

JUDGMENT 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 1995

CASES 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 720

PARTIES :
Regina v Gary Esteve Ambrosi

FILE NUMBER(S): CCA 60358/03

COUNSEL: Mr D. Howard - Crown
Mr G. Farmer - Appellant

SOLICITORS: 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

LEVINE J
O’KEEFE J
WHEALY J
THURSDAY 26 February 2004

REGINA v Gary Esteve AMBROSI

Judgment

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…

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 R v Ambrosi

Details

AGLC: R v Ambrosi [2004] NSWCCA 23
Case: [2004] NSWCCA 23
Decision Date: 26 February 2004

CaseChat Overview and Summary

In the case of R v Ambrosi, the defendant was convicted of armed robbery and related charges. The appeal was against the trial judge's decision to permit the co-accused to give evidence after the defendant, despite the co-accused's prior inconsistent statements. The High Court of Australia was asked to review this decision.

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