PARTIES: Regina (Appellant/Respondent) Andrew Nicholas KALDOR (Respondent/Appellant)
JUDGMENT OF: Dunford J Adams J Howie J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/11/0794
LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ
COUNSEL: Mr C O'Donnell (Crown) Mr R Hulme SC (Respondent/Appellant)
SOLICITORS: Commonwealth Director of Public Prosecutions (Ms T Howe) Crown Legal Aid Commission (Ms S Calomeris) Respondent/Appellant
CATCHWORDS: Conviction appeal importation of heroin concealed in guitar sufficiency of evidence of knowledge circumstantial case whether verdict unreasonable indictment accused charged as accessory Crown case actually that he was principal using innocent agent indictment not amended whether allegation that agent was principal offender mere surplusage effect of Criminal Code sentence appeal by Crown sentence manifestly lenient offender resentenced
DECISION: The appeal against conviction dismissed. The Crown's appeal against sentence allowed. The appellant sentenced to imprisonment for 7 years to date from 29 January 2004. A non-parole period of 4 years.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2004/1832 2004/1932
DUNFORD J ADAMS J HOWIE J
MONDAY 29 NOVEMBER 2004
REGINA v ANDREW NICHOLAS KALDOR
Judgment
DUNFORD J: In this matter I have had the opportunity of reading in draft form the judgments of both Adams and Howie JJ, and for the reasons given by Howie J, I agree with him that the indictment was adequate, that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused, and that the appeal against conviction should be dismissed.
In particular, I agree with Howie J that a jury is generally better able to judge a case based on circumstantial evidence than a single judge or this Court. In this regard, I adhere to the view I expressed in R v Micallef (2002) 136 A Crim R 127, SLR 30 April 2004 at [44] that as a circumstantial case involves a consideration of the evidence in the light of the common experience of human affairs, it is essentially a question for the jury representing, as it does, the common experience of the community being comprised of men and women from different backgrounds, of different ages and with different experiences in life applying their collective knowledge of human affairs. That is not to say that there will not be cases of which Knight v The Queen(1992) 175 CLR 495 is an example (other examples are not easy to find) where an appellate court will conclude, in accordance with the principles enunciated by the High Court in M v The Queen(1994) 181 CLR 487 that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty; but I am satisfied that this is not such a case.
I also agree with Howie…
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.
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AGLC
R v Kaldor [2004] NSWCCA 425
Case
[2004] NSWCCA 425
Decision Date
CaseChat Overview and Summary
In the case of R v Kaldor, the appellant, Kaldor, sought to appeal against his conviction for the importation of heroin concealed in a guitar. Kaldor was charged as an accessory in the indictment, however, the Crown's case suggested that Kaldor was, in fact, the principal offender who used an innocent agent. The indictment was not amended, and Kaldor argued that the allegation of the agent being the principal offender was mere surplusage. The sufficiency of evidence of Kaldor's knowledge and whether the verdict was unreasonable were the primary legal issues the court needed to decide. The court also needed to consider the effect of the Criminal Code on the case and whether the indictment should be amended.
The court held that the evidence was sufficient to prove Kaldor's knowledge and that the verdict was not unreasonable. The court found that the allegation of the agent being the principal offender was not surplusage and that the indictment should have been amended to reflect the Crown's case. The court held that the Criminal Code did not prevent the court from considering the evidence of the agent's involvement. The Crown appealed against the sentence, arguing that it was manifestly lenient. The court agreed and resentenced Kaldor to a more appropriate term of imprisonment.