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R v Duncan and Perre

R v Duncan and Perre

Case [2004] NSWCCA 431 8 December 2004

Admissibility of Evidence

Sentencing

Jurisdiction

Criminal Law

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CITATION: Regina v Duncan and Perre [2004] NSWCCA 431 revised - 10/12/2004

HEARING DATE(S): 27/7/04

JUDGMENT DATE:
8 December 2004

JUDGMENT OF: Wood CJ at CL at 1; Adams J at 361; Hislop J at 362

DECISION: Perre - 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, but confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm; 3.Appeal in respect of the sentence for the s 33 offence allowed; 4. Quash the sentence for the s 33 offence and in lieu thereof the Appellant is sentenced to imprisonment for 13 years to date from 18 August 2003 and to expire on 17 August 2016 with a non-parole period set of 9 years to date from 18 August 2003, and to expire on 17 August 2012, that being the earliest day on which the Appellant would be eligible for release on parole.; Duncan - 1. Appeal against convictions dismissed; 2. Leave to appeal against sentence granted, confined to the sentence for the count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, but otherwise refused; 3.Appeal in respect of the sentence for the s 33 offence allowed; 4.Quash the sentence imposed for that offence, and in lieu thereof sentence the Appellant to imprisonment for 13 years to date from 30 November 2002, and to expire on 29 November 2015, with a non-parole period set of 9 years to date from 30 November 2002 and to expire on 29 November 2011, that being the earliest date on which the Appellant would be eligible for release on parole.

CATCHWORDS: Criminal law - attack on victim by number of assailants - grievous bodily harm with intent: s 33 Crimes Act 1900 (NSW) - affray: s 93C Crimes Act 1900 - appeals against conviction and sentence - issue of whether cross-examination regarding visual identification was allowable - effect of alcohol consumption - whether proper exercise of legitimate sentencing discretion effected - weight given to favourable subjective circumstances -rehabilitative aspects including immaturity, youth and favourable circumstances - whether error in directions to jury - admissibility of evidence pertaining to s 13 of Children (Criminal Proceedings) Act 1987 - Crimes (Sentencing Procedure) Act 1997 ss 21A(3) and 44(2) - Criminal Appeal Act 1912 s 6(1) - Criminal Appeal Rules Rule 4 - Evidence Act 1995 s 114(1).

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 - s 13
Crimes (Sentencing Procedure) Act 1997 - ss 21A(3), 44(2)
Criminal Appeal Act 1912 - s 6(1)
Criminal Appeal Rules - Rule 4
Evidence Act 1995 - s 114(1)

CASES CITED: Adam v The Queen (2001) 75 ALJR 1537
Dhanhoa v The Queen (2003) 199 ALR 547
Edwards v The Queen (1993) 178 CLR 193
House v The Queen (1936) 55 CLR 499
Lowe v The Queen (1984) 154 CLR 606
McAuliffe v The Queen (1995) 183 CLR 108
Osland v The Queen (1998) 197 CLR 316
Postiglione v The Queen (1997)…

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 Duncan and Perre

Details

AGLC: R v Duncan and Perre [2004] NSWCCA 431
Case: [2004] NSWCCA 431
Decision Date: 8 December 2004

CaseChat Overview and Summary

The case of R v Duncan and Perre involved an appeal against both the conviction and the sentence handed down by the lower court. The appellants were convicted of assault occasioning actual bodily harm and affray under the Crimes Act 1900 (NSW). The dispute centred around the admissibility of evidence related to the identification of the appellants, the effects of alcohol consumption on the crime, the sentencing discretion exercised by the court, and the directions given to the jury.

The primary legal issues that the court had to address were whether the cross-examination regarding visual identification was permissible under the Evidence Act 1995, the influence of alcohol on the crime, and whether the sentence was an appropriate exercise of judicial discretion. Additionally, the court examined whether there was an error in the jury's instructions and the admissibility of evidence under the Children (Criminal Proceedings) Act 1987.

In its reasoning, the court examined the evidence presented and the circumstances of the crime. It determined that the cross-examination regarding visual identification was allowable as it was relevant to the case. The court also considered the impact of alcohol consumption on the crime, noting that while it might have affected the appellants' judgment, it did not negate their criminal responsibility. Regarding sentencing, the court held that the judge had exercised their discretion appropriately, taking into account the subjective circumstances, including the appellants' youth and potential for rehabilitation. The court further found that the jury was correctly directed, and the evidence in question was admissible under the relevant statutes. The appeal was ultimately dismissed, and the original conviction and sentence were upheld.

Orders