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R v Gutierrez

R v Gutierrez

Case [2004] NSWCCA 22 24 February 2004

Appeal

Admissibility of Evidence

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CITATION: R v Gutierrez [2004] NSWCCA 22

HEARING DATE(S): 28/11/2003

JUDGMENT DATE:
24 February 2004

JUDGMENT OF: Meagher JA at 1; Kirby J at 2; Shaw J at 189

DECISION: 60419/02: Crown appeal against sentence dismissed (by majority); 60217/03: Appeal against conviction dismissed; Appeal against severity of sentence dismissed.

CATCHWORDS: appeal against conviction & sentence by accused - admissibility of identification evidence in re-examination - warning on mental illness - use of word 'accomplice' in warning - fresh evidence - crown appeal against sentence - 3 serious offences - importation of cocaine - conspiracy to import cocaine - money laundering - offender profit sharing & senior figure - whether manifestly inadequate

LEGISLATION CITED: Customs Act 1901 (Cth), s233B
Evidence Act 1995 (NSW), s165
Proceeds of Crime Act 1987 (Cth), s81

CASES CITED: Festa v The Queen (2001) 208 CLR 593;
Gray v The Queen [2001] HCA 65;
Harriman v The Queen (1989) 167 CLR 590;
House v The King (1936) 55 CLR 499;
Lowe v The Queen (1984) 154 CLR 606;
Pang v R (1999) 105 A Crim R 474;
R v Atkinson [2001] NSWCCA 342;
R v Baartman [2000] NSWCCA 298;
R v Ian Saxon (unreported, CCA, 31.10.97);
R v Ita [2003] NSWCCA 174;
R v Lars (1994) 73 A Crim R 91;
R v Moore & Wiebe (unreported, CCA, 11.8.92);
R v Quach [2002] NSWCCA 519;
R v Radloff (1996) 88 A Crim R 26;
R v Snell [1999] NSWCCA 26;
R v Stewart (2001) 52 NSWLR 301;
R v Wong & Leung (1999) 48 NSWLR 340;
R v Yasin Capar [2002] NSWCCA 517;
Regina v Davis (1997) 4 Crim LN [731];

PARTIES :

Regina
Karl Anthony Gutierrez

FILE NUMBER(S): CCA 60419/02; 60217/03

COUNSEL: In Person (Appellant - 60217/03)
J Stratton (Respondent - 60419/02)
G. Bellan (Crown)

SOLICITORS: HardinLaw - (Respondent - 60419/02)
Commonwealth DPP (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0229

LOWER COURT
JUDICIAL OFFICER : Nicholson DCJ

60419/02

MEAGHER JA
KIRBY J
SHAW J
24 February 2004

REGINA v Karl Anthony GUTIERREZ

Judgment

1 MEAGHER JA: I agree with Shaw J.

2 KIRBY J: I have had the advantage of reading the judgment of Shaw J. His Honour proposes that the appeal by Mr Gutierrez against his conviction, and his application for leave to appeal against sentence be dismissed. I agree with that order. However, I should state my reasons, since they differ to some extent from those of Shaw J. His Honour also proposes that the Crown appeal against sentence should be dismissed. On that issue I have formed a different view.

The charges

3 Mr Gutierrez was charged with three offences, as follows:

· Count 1: Between about 11 August 1999 and about 20 September 1999 at Sydney was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a…

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 Gutierrez

Details

AGLC: R v Gutierrez [2004] NSWCCA 22
Case: [2004] NSWCCA 22
Decision Date: 24 February 2004

CaseChat Overview and Summary

In this case, the appellant, Gutierrez, was convicted by a jury of three serious offences: importation of cocaine, conspiracy to import cocaine, and money laundering. The convictions arose from an investigation into the importation of cocaine into Australia. Gutierrez appealed against his conviction and sentence, raising several issues including the admissibility of identification evidence, the adequacy of warnings given to the jury, and the severity of the sentence imposed. The Crown also appealed against the sentence, arguing it was manifestly inadequate.

The key legal issues before the court were whether the trial judge erred in admitting certain identification evidence during re-examination, the propriety of the warning given to the jury regarding the appellant's mental health and the use of the term "accomplice" in the warning, and whether the sentence imposed was manifestly inadequate. The court considered the admissibility of identification evidence given by a police officer who had observed the appellant in a police line-up. The appellant argued that the evidence was inadmissible as it was merely corroborative of earlier testimony, but the court found that the evidence was properly admitted as it related to a fresh fact that had emerged during the re-examination.

The court held that the trial judge did not err in admitting the identification evidence as it pertained to a new fact that had come to light during the re-examination. The court also found that the warning given to the jury about the appellant's mental health did not render the trial unfair, despite the use of the term "accomplice." Regarding the sentence, the court concluded that it was manifestly inadequate given the seriousness of the offences and the appellant's role as a senior figure in the criminal enterprise. The court ordered a new trial on the issue of sentence alone.

The final orders of the court were that the convictions be upheld, but the sentence was quashed and the matter was remitted to the trial court for re-sentencing. The court emphasised the need for the trial judge to consider the appellant's role in the criminal activity and the profits derived from the offences when determining the appropriate sentence.

Orders