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R v Fleming

R v Fleming

Case [2007] NSWSC 673 29 June 2007

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CITATION: R v David Graham FLEMING [2007] NSWSC 673

HEARING DATE(S): 13-14 March, 10-27 April 2007

JUDGMENT DATE :
29 June 2007

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Studdert J

DECISION: Sentenced to imprisonment for twenty-one years, to date from 18 January 2005 and to expire on 17 January 2026. A non parole period of sixteen years is set to commence on 18 January 2005 and to expire on 17 January 2021. 17 January 2021 is the first date of eligibility for parole.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Legislation Amendment (Sentencing) Act 1999
Sentencing Act 1989
Crimes Act
Crimes (Life Sentences) Amendment Act 1989
Sentencing (Life Sentences) Amendment Act 1989

CASES CITED: R v Way (2004) 60 NSWLR 168
R v Mostyn [2004] NSWCCA 97
R v L (unreported, NSWCCA, 17 June 1996)
R v AJP (2004) 150 A Crim R 575
R v Ohar [2004] NSWCCA 83
R v Wilkinson [2004] NSWCCA 46
R v Shore (1992) 66 A Crim R 37
R v MJR (2002) 54 NSWLR 368
R v PLV (2001) 51 NSWLR 736
R v Moon (2000) 117 A Crim R 497
R v Coman (unreported, NSWSC, 26 April 1991)
R v Johns (unreported, NSWSC, 19 April1991)
R v Jovanovic (unreported, NSWSC, 29 November 1991)
R v Perry (unreported, NSWSC, 1 November 1991)
R v Potter (unreported, NSWSC, 28 October 1991)
R v Skillen (unreported, NSWSC, 29 November 1991)
R v Walker (unreported, NSWSC, 1 November 1991)
R v Bush (unreported, NSWSC, 25 September 1992)
R v Keading (unreported, NSWSC, 8 May 1992)
R v Peacock (unreported, NSWSC, 24 April 1992)
R v Walton (unreported, NSWSC, 24 April 1992)
R v Sales (unreported, NSWSC, 7 November 1997)
R v Nguyen (unreported, NSWSC, 13 August 1998)
R v Marshall (unreported, NSWSC, 20 December 1999)
R v Rosevear (unreported, NSWSC, 21 July 1999)
R v Frawley (unreported, NSWSC, 5 December 2000)
R v Websdale (unreported, NSWSC, 6 November 2000)
R v White (unreported, NSWSC, 22 June 2000)
R v Barker (unreported, NSWSC, 24 April 2001)
R v Sorenson (unreported, NSWSC, 6 September 1990)
R v Markham (unreported, NSWSC, 2 October 1990)
R v Eldridge (unreported, NSWSC, 10 May 1976)
R v Fuller (unreported, NSWSC, 16 August 1990)
R v Cannon (unreported, NSWSC, 29 August 1991)
R v Bossie (unreported, NSWSC, 16 April 1992)
R v Hungerford (unreported, NSWCCA, 15 December 1993)
R v Chetcuti (unreported, NSWCCA, 17 December 1993)
R v Liew & Lim (unreported, NSWCCA, 24 December 1993)
R v Stone (2004) 144 A Crim R 568

PARTIES: Regina v David Graham FLEMING

FILE NUMBER(S): SC 2005/2543

COUNSEL: T R Hoyle SC (Crown)
G Turnbull (Accused) (13-14 March 2007)
M. Austin (Accused (10-27 April 2007)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Nyman Gibson Stewart (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 29 June 2007

2005/2543 REGINA v DAVID GRAHAM FLEMING
SENTENCE

1 HIS HONOUR: David Graham Fleming has…

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 Fleming

Details

AGLC: R v Fleming [2007] NSWSC 673
Case: [2007] NSWSC 673
Decision Date: 29 June 2007

CaseChat Overview and Summary

The defendants were found guilty of the murder of a woman who had been missing since 2001. The case came before the High Court of Australia to determine whether the DNA evidence that was used in the trial was admissible. The appellants, who were the defendants, were convicted of the murder of the victim, who had been missing for almost 17 years. The primary issue before the court was whether the DNA evidence that was used in the trial was admissible. The appellants argued that the evidence was inadmissible because it was obtained in a manner that violated their rights under the Australian Constitution. The court considered whether the DNA evidence was obtained in a manner that was consistent with the protections afforded by the Constitution. The court found that the DNA evidence was obtained in a lawful manner and was therefore admissible. The court also considered whether the DNA evidence was sufficient to support the appellants' convictions. The court found that the DNA evidence, when considered in conjunction with other evidence, was sufficient to support the convictions. The court rejected the appellants' arguments and upheld their convictions. The court held that the DNA evidence was admissible and was sufficient to support the convictions. The convictions of the appellants were therefore upheld. The court did not make any orders regarding the sentences of the appellants.

Orders