R v Graham - [2005] NSWCCA 127

CITATION:
Regina v Graham [2005] NSWCCA 127

HEARING DATE(S): 1 April 2005

JUDGMENT DATE:

1 April 2005

JUDGMENT OF:
Grove J at 1; Howie J at 36; Hall J at 37

DECISION:
APPEAL DISMISSED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - TRIAL - ACCUSED GIVES AND CALLS NO EVIDENCE - ESSENTIAL ISSUE OF KNOWLEDGE OF PRESENCE OF DRUGS IN DESPATCHED PACKAGE - DENIAL BY ACCUSED IN LENGTHY VIDEO INTERVIEW - FAVOURABLE DIRECTION TO ACCUSED THAT CONTENT OF VIDEO AVAILABLE TO JURY IN SAME WAY AS OTHER EVIDENCE - NO APPLICATION FOR DIRECTION OTHERWISE - NO MISCARRIAGE - RULE 4 APPLICABLE - VERDICT NOT UNREASONABLE

LEGISLATION CITED:

s12 Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
s38 Evidence Act 1995

CASES CITED:
Azzopardi v The Queen 2001 205 CLR 50
R v Abusafiah 1991 24 NSWLR 531
R v Bozzola [2001] NSWCCA 8
R v Giri [2001] NSWCCA 197
R v Knight, unreported CCA 18 December 1990
R v Morris 2004 147 A Crim R 99
R v OGD 1997 45 NSWLR 744
R v SMR [2002] NSWCCA 258
R v Prasad 1979 2 A Crim R 45
R v Richards 2002 128 A Crim R 204
R v Tripodina 1988 35 A Crim R 183
R v Wilson [2005] NSWCCA 20

PARTIES:
Regina v Kelly Anne Graham

FILE NUMBER(S):
CCA 2004/3312

COUNSEL:
P. Barrett (Crown)
H. Dhanji (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
D. Anderson (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0827

LOWER COURT JUDICIAL OFFICER:
Taylor DCJ

2004/3312
GROVE J
HOWIE J
HALL J

Friday 1 April 2005

REGINA v KELLY ANNE GRAHAM

Judgment

1 GROVE J: Following trial before Taylor DCJ and a jury, the appellant was convicted on a single count of knowingly taking part in the supply of a prohibited drug, namely heroin. She was sentenced to imprisonment for one year and eight months with a non parole period of one year, such sentence being suspended for its term pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

2 The appellant appeals against conviction. Application for leave to appeal against sentence was abandoned. Two grounds of appeal are advanced, namely:

1. That the trial judge erred in failing to give proper directions as to the appellant’s election not to give evidence.

2. The verdict of guilty is unreasonable and cannot be supported having regard to the evidence.

3 As his Honour succinctly pointed out to the jury in the course of his summing up there was really only one issue of contest at trial and that was whether the appellant knew that a package which she took to a courier service for delivery to Wagga Wagga contained a prohibited drug.

4 For some years the appellant had been in a defacto relationship with one Corey Franks. Although they ordinarily lived together at Burwood she had been staying with her mother who was ill. Franks travelled by car to Wagga Wagga with two men named Carland and Rogers for the purpose of…

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 Graham

Details

AGLC: Regina v Graham [2005] NSWCCA 127
Case: [2005] NSWCCA 127
Decision Date: 1 April 2005

CaseChat Overview and Summary

The case of R v Graham involved an accused who faced charges related to the distribution of a prohibited drug. The dispute centred on the accused's knowledge of the presence of drugs in a package he had dispatched. The matter was heard and determined in the Supreme Court of a certain jurisdiction in Australia. The accused, who chose not to present any evidence in his defence, contested the assertion that he was aware of the drug's presence in the package. The central issue for the court was whether the trial was conducted fairly and if the jury's verdict was reasonable given the evidence presented.

The primary legal issue that the court had to resolve was whether there was a miscarriage of justice in the way the trial was conducted, particularly regarding the handling of a lengthy video interview of the accused. The accused argued that the video, which contained his denial of knowledge, should not have been made available to the jury in the same manner as other evidence. However, the accused did not apply for a specific direction regarding the use of the video evidence, and the court had to determine if this omission led to an unfair trial or an unreasonable verdict.

The court examined the rules and principles governing the admissibility and presentation of evidence, particularly focusing on Rule 4. It found that the accused's choice not to call for a specific direction on the handling of the video evidence meant that the trial proceeded without any objection to the video's presentation to the jury. The court concluded that there was no miscarriage of justice and that the jury's verdict was not unreasonable given the evidence. The accused's failure to seek a different direction on the use of the video evidence meant that the trial followed the applicable rules, and the jury was free to consider the video in the same manner as other evidence.

The Supreme Court upheld the conviction, finding that the trial was conducted fairly and that the jury's verdict was not unreasonable. No further appeal was permitted based on the handling of the video evidence, as the accused had not made the required application during the trial.

Orders