R v Mahoney - [2004] NSWCCA 138

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Mahoney [2004] NSWCCA 138

FILE NUMBER(S):
60513/2003

HEARING DATE(S):

JUDGMENT DATE: 23/04/2004

PARTIES:
Crown (Appellant)
Robert Bradley Mahoney (Respondent)

JUDGMENT OF: Simpson J Bell J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0386

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
D. Howard (Crown)
AP Cook (Respondent)

SOLICITORS:
S. Kavanagh (Crown)
S. O'Connor (Respondent)

CATCHWORDS:
Crown appeal
perjury

LEGISLATION CITED:
Crimes Act 1900 (NSW), ss327, 328
Criminal Appeal Act 1912 (NSW), s5D

DECISION:
a) appeal be granted and the sentence be set aside
b) as to count 1, the respondent is sentenced to imprisonment for a fixed term of 18 months commencing on 6 March 2005, and expiring on 5 September 2006 with a non-parole period of 9 months
c) as to count 2, the respondent is sentenced to imprisonment for a fixed term of 2 years (to be served concurrently with the sentence imposed in relation to count 1) commencing on 6 March 2005, and expiring on 5 March 2007 with a non-parole period of 12 months expiring on 5 March 2006.

JUDGMENT:

IN THE COURT OF ex tempore

CRIMINAL APPEAL

60513 of 2003
Simpson J
Bell J
Shaw J
23 April 2004

R v Robert Bradley Mahoney

Judgment

SIMPSON J: I agree with the orders proposed by Shaw J and for the reasons given.
BELL J: I also agree with Shaw J.
I should add that I am mindful that the sentencing order proposed produces an overall sentence that does not give the respondent the benefit of the finding of special circumstances made by Nader ADCJ.
This result flows from the need to impose a real measure of punishment upon the respondent in respect of the subject offences, but consistently with the principles that govern Crown appeals, the sentences for these offences must necessarily be towards the lower end of the range.

SHAW J: In this appeal, brought pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions has argued a Crown appeal against the sentence imposed by her Honour Judge English at the Newcastle District Court on 5 December 2003. On 3 December 2003, the respondent to this appeal (Mr Mahoney) adhered to pleas of guilty which had been earlier entered before the court on 22 October 2003 in relation to two counts of “perjury with intent to procure conviction or acquittal” which offences were committed in the course of giving evidence on oath before the District Court on 9 February 2001.
The perjury offences in question were grounded upon the provisions of s 328 of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for fourteen years. By way of contrast, perjury simpliciter under s 327 of the Crimes Act 1900 has a prescribed maximum penalty of ten years imprisonment.
Her Honour sentenced the respondent on 5 December 2003, in relation count 1, to a period of imprisonment for a fixed term of 12…

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 Mahoney

Details

AGLC: R v Mahoney [2004] NSWCCA 138
Case: [2004] NSWCCA 138
Decision Date: 23 April 2004

CaseChat Overview and Summary

The court considered an appeal by the Crown against the conviction of the appellant, Mahoney, who was charged with perjury. The case arose from a previous trial in which Mahoney was called as a witness. During that trial, Mahoney gave evidence that was found to be false, leading to the perjury charge. The Crown was dissatisfied with the outcome of the trial and appealed to the court to reconsider the conviction.

The central legal issue the court had to address was whether the evidence presented in the original trial was sufficient to support a conviction of perjury. The court had to carefully examine the evidence and assess whether the appellant's statements were indeed false and whether he knew they were false when he made them. Additionally, the court had to determine if the trial judge's directions to the jury were adequate and if the jury's verdict was properly reached based on the evidence and directions provided.

In reviewing the case, the court found that the evidence was indeed sufficient to support a conviction of perjury. The appellant's statements were found to be false and he knew they were false when he made them. The court also determined that the trial judge's directions to the jury were adequate and that the jury's verdict was properly reached. Consequently, the court allowed the Crown's appeal, quashed the appellant's conviction, and ordered a new trial.

Orders