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R v Korgbara

R v Korgbara

Case [2007] NSWCCA 84 30 March 2007

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Reported Decision: 170 A Crim R 568

Appeal Outcome: Special leave application refused by the High Court - 31 August 2007

New South Wales

Court of Criminal Appeal

CITATION: Korgbara v Regina [2007] NSWCCA 84
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 August 2006

JUDGMENT DATE:
30 March 2007

JUDGMENT OF: McColl JA at 1; Grove J at 111; James J at 121

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against the sentence granted, but appeal dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE — voice comparison — tape recording of accused speaking English — tape recordings of persons discussing crime in foreign language — foreign language accused's native tongue — accused gave evidence — whether jury could compare voice of accused with voices on tapes to determine if he was one of those speaking on the foreign language tapes — whether open to jury to compare a voice speaking a foreign language with a voice speaking English in the absence of expert evidence - SENTENCE — accused convicted of being knowingly concerned in importation into Australia of cocaine equivalent to 102.5 grams pure — sentenced to nine years imprisonment with a non parole period of five years and five months — accused arrested before repeal of s 16G of the Crimes Act 1914 (Cth) but tried and sentenced after repeal — whether sentence should reflect pre-repeal regime — whether trial judge gave any, or any adequate weight, to fact accused attacked in gaol and to delay in Crown bringing the matter to trial — whether sentence manifestly excessive.

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)

CASES CITED: Bulejcik v R [1995] HCA 54; (1996) 185 CLR 375
Clarkson v R [2007] NSWCCA 70
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Nguyen v R [2002] WASCA 181; (2002) 131 A Crim R 341
Radenkovic v R [1990] HCA 54; (1990) 170 CLR 623
T (1990) 47 A Crim R 29
R v Adler [2000] NSWCCA 357; (2000) 52 NSWLR 451
R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430
R v Chenia [2002] EWCA Crim 2345; [2003] 2 Cr App R 6
R v Dujeu [2004] NSWCCA 237; (2004) 146 A Crim R 121
R v Gilmore [1977] 2 NSWLR 935
R v GK [2001] NSWCCA 413; (2001) 53 NSWLR 317
R v Harris (No 3) [1990] VR 310
R v Hersey [1998] Crim LR 281
R v Leung & Anor [1999] NSWCCA 287; (1999) 47 NSWLR 405
R v McHardie & Danielson [1983] 2 NSWLR 733
R v Menzies [1982] 1 NZLR 40
R v O’Doherty [2003] 1 Cr App R 5
R v Riscuta; R v Niga [2003] NSWCCA 6
R v Rivadavia [2004] NSWCCA 284; (2004) 61 NSWLR 63
R v Smith [1984] 1 NSWLR 462
R v Solomon

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 Korgbara

Details

AGLC: R v Korgbara [2007] NSWCCA 84
Case: [2007] NSWCCA 84
Decision Date: 30 March 2007

CaseChat Overview and Summary

In the case of R v Korgbara, the appellant was convicted of being knowingly concerned in the importation of cocaine into Australia and was sentenced to nine years imprisonment with a non-parole period of five years and five months. The appellant argued that the trial judge erred in allowing the jury to compare his voice, as heard in a tape recording of him speaking English, with voices on tapes where the speakers were discussing the crime in a foreign language, which was the appellant's native tongue. The appellant also challenged the sentence, claiming it should reflect the regime in place before the relevant statutory provisions were repealed, and that the trial judge did not adequately consider the fact that the appellant had attacked another prisoner in gaol and the delay in the Crown bringing the matter to trial.

The legal issues before the court were whether it was open to the jury to compare a voice speaking a foreign language with a voice speaking English in the absence of expert evidence, and whether the sentence was manifestly excessive given the circumstances. The court considered whether the trial judge should have given consideration to the fact that the appellant was arrested before the repeal of relevant sections of the Crimes Act 1914 (Cth) and the delay in bringing the case to trial.

The court held that the trial judge did not err in allowing the jury to compare the appellant's voice on the English language tape with those on the foreign language tapes, as the comparison was not beyond the common experience and knowledge of the jury. The court also found that the sentence was not manifestly excessive, despite the appellant's attack in gaol and the delay in bringing the case to trial, as the trial judge had considered these factors and was not required to give them any particular weight. The appeal against conviction and sentence was dismissed.

Orders