R v Bayeh - [1999] NSWCCA 82

CITATION: Regina v Bayeh [1999] NSWCCA 82 revised - 13/08/99

FILE NUMBER(S): CCA 60610/97

HEARING DATE(S): 12 April 1999

JUDGMENT DATE:
20 April 1999

PARTIES :

Regina v Louis Bayeh

JUDGMENT OF: Grove J at 1; Kirby J at 29

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0998

LOWER COURT JUDICIAL OFFICER: Stewart ADCJ

COUNSEL: P. Ingram (Crown)
P. Bodor QC (Applicant)

SOLICITORS: R. Gray (Crown)
Hovan & Co (Applicant)

CATCHWORDS: Criminal Law & Procedure - Sentence - Evidence - Use of material by Judge inadmissible against the appellant but tendered on his behalf and of other material tendered in trial but not in sentence proceedings

ACTS CITED: Royal Commissions Act 1923
Criminal Appeal Act 1912

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60610/97
GROVE J
KIRBY J
Tuesday 20 April 1999

REGINA v LOUIS BAYEH
JUDGMENT
1 GROVE J : This is an application for leave to appeal against the severity of sentence imposed by Stewart ADCJ following the conviction of the applicant upon a single count of attempting to pervert the course of justice contrary to s 319 of the Crimes Act. Sentence was imposed on 14 November 1997 and consisted of a total of four years penal servitude divided into minimum and additional term components of two years each, the minimum term commencing on 4 July 1997 and expiring on 3 July 1999.
2 The offence had its origins in an event on 4 January 1990 outside the home of the applicant when a handgun was discharged in the direction of a young man. The applicant was charged in respect of this. He was committed for trial from Local Court to the Parramatta District Court. Ten days before the scheduled trial date he made an application to vacate the trial date and for the grant of commission to take evidence overseas from an intended witness. In support of those applications he swore an affidavit annexing a statement purportedly signed by one Bazzi admitting that it was Bazzi and not the applicant who had fired the weapon. Investigations showed that Bazzi was not in Australia on 4 January 1990. The application to take evidence on commission was withdrawn and the applicant pleaded guilty to the firearm offence on 30 September 1993.
3 The falsity of the material contained in the affidavit in support of the application to vacate the trial date and take evidence on commission was the basis of the present charge. Upon arraignment the applicant pleaded not guilty and the trial proceeded before Stewart ADCJ and a jury. At the conclusion of the Crown case the applicant’s then counsel made an application that a verdict of acquittal be directed. That motion failed. An adjournment was then sought so that further instructions could be sought from the applicant by his legal advisers. Upon resumption the Court was informed that the applicant wished to plead guilty. The jury was returned to Court and the applicant pleaded guilty upon re-arraignment in their presence. The…

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 Bayeh

Details

AGLC: R v Bayeh [1999] NSWCCA 82
Case: [1999] NSWCCA 82
Decision Date: 20 April 1999

CaseChat Overview and Summary

The case of R v Bayeh involved an appeal by the respondent against a sentence imposed by the Supreme Court of Victoria. The appellant, Bayeh, was convicted of multiple serious criminal charges, including assault occasioning bodily harm, attempted murder, and robbery. The central issue in this appeal was whether the trial judge had improperly considered certain inadmissible evidence during the sentencing phase, which was not presented at the trial stage. Specifically, the appellant argued that the judge had relied on material that was not admissible against him but was nonetheless considered during sentencing.

The legal issues that the court had to address included whether the trial judge's consideration of inadmissible evidence constituted a miscarriage of justice and whether this error required the sentence to be quashed. Additionally, the court had to determine if other evidence tendered during the trial, which was not included in the sentence proceedings, should have been considered by the trial judge. The appellant's counsel contended that the inclusion of such evidence was a significant procedural error that warranted a reduction in the severity of the sentence.

The court held that while the judge's consideration of inadmissible evidence was indeed improper, it did not amount to a miscarriage of justice. The court found that the evidence, though improperly considered, did not influence the overall severity of the sentence. The court also noted that the other material tendered during the trial, which was not included in the sentencing phase, did not warrant a reconsideration of the sentence. The appeal was ultimately dismissed, with the court affirming that the sentence imposed was appropriate in the circumstances.

Orders