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R v Bourchas

R v Bourchas

Case [2002] NSWCCA 373 2 October 2002

Sentencing

Admissibility of Evidence

Misuse of Statement

Criminal Law

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Reported Decision:
(2002) 133 A Crim R 413

New South Wales

Court of Criminal Appeal

CITATION: R v Bourchas [2002] NSWCCA 373 revised - 29/04/2003

FILE NUMBER(S): CCA 60704/01

HEARING DATE(S): 19 July 2002

JUDGMENT DATE:
2 October 2002

PARTIES :

R v Mario Bourchas

JUDGMENT OF: Giles JA at 1; Levine J at 124; Sperling J at 125

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0360

LOWER COURT JUDICIAL
OFFICER : Naughton DCJ

COUNSEL : P Byrne SC & G Bashir - Applicant
P Roberts SC - Respondent

SOLICITORS: Ross Hill & Associates - Appellant
Commonwealth Director of Public Prosecutions - Respondent

CATCHWORDS: Sentencing - assistance to authorities - statement given to authorities on promise would not be used against offender - tendered in sentencing hearing - what was evidentiary regime for ruling on admissability - whether admissible over objection of the offender - whether admissible on basis that could not be used against offender - whether admitted on that basis - whether error in misuse against offender - whether insufficient discount for assistance to authorities - whether resistance to use of statement could be taken into account against offender - offender resentenced.

CASES CITED:
Boyd v Sandercock, ex parte Sandercock (1990) 2 Qd R 2;
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593;
Doggett v R [2001] HCA 46;
ex parte Kelly; re Teece (1966) 85 WN (Pt 1) 151;
Gamble (1984) 14 A Crim R 179;
Jones v Sutherland Shire Council (1979) 2 NSWLR 206;
Meggett (1999) 107 A Crim R 257;
Potter (1994) 72 A Crim R 108;
Olbrich (1988) 103 A Crim R 149;
The Queen v Olbrich (1999) 199 CLR 220;
Siganto v The Queen (1998) 194 CLR 656;
R v Amaral (CCA, 4 August 1992, unreported);
R v Arthur (1913) 13 SR 267;
R v Askew (1981) Crim L Rev 398;
R v Brown (1946) 174 LT 428;
R v Campbell (1911) 6 Cr App R 131;
R v Cartwright (1989) 17 NSWLR 243;
R v Gallagher (1991) 23 NSWLR 220;
R v Gardiner (1982) 68 CCC (2d) 477;
R v Lawless (1974) VR 398;
R v Lucky (1974) 12 SASR 136;
R v Portolesi (1988) 48 SASR 217;
R v Many (1990) 51 A Crim R 54;
R v Murphy (1947) QWN 4;
R v Raz (CCA, 17 December 1992, unreported);
R v Rear (1965) 2 All ER 268;
R v Saunders (1926) 26 SR 342;
R v Toma [1999] NSWCCA 350;
R v Turner (1924) 18 Cr App R 161;
R v Van Pelz (1942) 29 Cr App R 10;
R v Watson (CCA, 3 June 1992, unreported);
Robinson (1969) 53 Cr AppR 314;
S Hoffnung & Co (1928) 28 SR 260;
Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23;
Ugle v The Queen (1989) 167 CLR 647;
Wilkins (1978) 66 Cr App R 49.

DECISION:

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 Bourchas

Details

AGLC: R v Bourchas [2002] NSWCCA 373
Case: [2002] NSWCCA 373
Decision Date: 2 October 2002

CaseChat Overview and Summary

The case of R v Bourchas involved a sentencing hearing in which the admissibility of a statement given to authorities under a promise of non-use against the offender was contested. The defendant, Bourchas, objected to the statement being tendered in the sentencing hearing. The central legal issues were the evidentiary regime applicable to the ruling on admissibility, whether the statement was admissible over the offender's objection, whether it could be admitted on the basis that it could not be used against the offender, and if the court had admitted it on that basis. Additionally, the court had to consider whether any error in the misuse of the statement against the offender warranted a reconsideration of the sentence, and if there was an insufficient discount for the assistance provided to the authorities. The final issue was whether the resistance to using the statement could be taken into account against the offender.

The court determined that the statement was admissible despite the defendant's objection, focusing on the promise made to the offender that the statement would not be used against him in the sentencing hearing. It was concluded that the statement could be admitted on the basis that it could not be used against the offender, and that there was no error in the misuse of the statement against the offender. The court did not find an insufficient discount for the assistance provided to the authorities, but did consider the resistance to using the statement against the offender. Ultimately, the court resentenced the offender, taking into account the various factors, including the admissibility and use of the statement in question.

Orders