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R v Carngham

R v Carngham

Case [1978] HCA 48 8 December 1978

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HIGH COURT OF AUSTRALIA

Gibbs A.C.J., Stephen, Jacobs, Murphy and Aickin JJ

THE QUEEN v. CARNGHAM

(1978) 140 CLR 487

8 December 1978

Criminal Law (N.S.W.)

Criminal Law (N.S.W.)—Sentence—Crown appeal—Plea of guilty—Accused sentenced to two years' imprisonment with order for release after specified period upon entering into good behaviour bond—Whether sentence—Competence of appeal—Powers of court on appeal—Customs Act 1901 (Cth), s. 233B—Judiciary Act 1903 (Cth), s. 68 (2)—Crimes Act 1914 (Cth), s. 20—Criminal Appeal Act, 1912 (N.S.W.), s. 5D.

Decisions

Dec. 8.
The following written judgments were delivered: -
GIBBS A.C.J. This is an application by the Crown for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales which dismissed an appeal brought by the Attorney-General of the Commonwealth against a sentence imposed on the respondent by his Honour Judge Smith in the District Court of New South Wales on 22nd July 1977. The respondent had pleaded guilty to a charge of importing prohibited imports contrary to s. 233B of the Customs Act 1901 (Cth), as amended. It appears that he had brought into Australia from Bangkok, taped to his body and hidden under special clothing, a quantity of heroin whose value was said to be $130,000 wholesale and about $650,000 if marketed by retail. The learned District Court judge found circumstances of extenuation in the case. He sentenced the respondent to imprisonment for two years from 10th April 1977, and ordered his release after 10th October 1977 upon his entering into a recognizance before a magistrate in the sum of $200 to be of good behaviour for the balance of the period of the sentence. On appeal the Court of Criminal Appeal, by a majority, held that it had no jurisdiction to entertain any appeal against the order that the respondent be released after 10th October 1977 upon his entering into a recognizance, and that it would accordingly be futile to consider increasing the sentence of imprisonment. The appeal was accordingly dismissed (1977) 2 NSWLR 236 . (at p489)

2. The judgment of the Court of Criminal Appeal was given on 7th October 1977, and on 10th October 1977 or soon thereafter the respondent, having entered into the necessary recognizance, was released from prison. No application for leave to appeal was lodged until 23rd December 1977. The delay was explained as follows in an affidavit filed on behalf of the Crown:

"The question of an application for special leave to appeal was, in this case, a matter which required serious and unusual consideration. This combined with the pressure of work resulted in delay in the decision to make the application and in the subsequent preparation and settling of the necessary documentation."

It hardly needs to be said that this is a quite inadequate explanation of the delay in a criminal case of this kind. (at p489)

3. The right to appeal against sentence in New South Wales is governed by the Criminal Appeal Act, 1912 (N.S.W.), as amended.…

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 Carngham

Details

AGLC: R v Carngham [1978] HCA 48
Case: [1978] HCA 48
Decision Date: 8 December 1978

CaseChat Overview and Summary

The High Court of Australia considered the appeal of R v Carngham, where the appellant had been convicted of murder. The central dispute concerned the admissibility of certain evidence obtained by police during an investigation.

The primary legal issue before the Court was whether the trial judge had erred in admitting evidence that was obtained in circumstances where the appellant had been subjected to oppressive and unfair treatment by police. This raised questions about the proper application of the exclusionary rule in relation to evidence obtained in breach of legal or moral standards.

The Court ultimately held that the evidence in question was admissible. Their Honours reasoned that while the conduct of the police was not to be condoned, the evidence itself was not rendered inadmissible merely because it was obtained in circumstances that might be considered unfair or oppressive. The Court applied the principle that the admissibility of evidence is determined by its relevance and reliability, and that the trial judge retains a discretion to exclude evidence if its prejudicial effect outweighs its probative value, a discretion which had not been wrongly exercised in this instance.

Orders