CITATION: Regina v Graham [2005] NSWCCA 127
HEARING DATE(S): 1 April 2005
JUDGMENT DATE:
1 April 2005JUDGMENT 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 1995CASES 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 20PARTIES: 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
GROVE J2004/3312
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…
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- Regina v Graham [2005] NSWCCA 127
- Case
- [2005] NSWCCA 127
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
Evidence Before The Court
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Decision
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