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R v Marchando

R v Marchando

Case [2000] NSWCCA 8 11 February 2000

Jurisdiction

Appeal

Admissibility of Evidence

Miscarriage of Justice

Contempt of Court

Negligence

Criminal Law

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Reported Decision: 110 A Crim R 337

New South Wales

Court of Criminal Appeal

CITATION: Regina v Marchando [2000] NSWCCA 8

FILE NUMBER(S): CCA 60307/99

HEARING DATE(S): 3 December 1999

JUDGMENT DATE:
11 February 2000

PARTIES :

Crown (Commonwealth) (Respondent)
Thomas Dale MARCHANDO (Applicant)

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 2; Simpson J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0377

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : W Roser - Crown
P Byrne SC - Applicant

SOLICITORS: Commonwealth Director of Public Prosecutions (Respondent)
Paton Lawyers - Applicant

LEGISLATION CITED: Crimes Act 1914(Cth)
Customs Act 1901 (Cth)
Mutual Assistance in Criminal Cases Act 1987 (Cth)
Foreign Evidence Act 1994 (Cth)
Evidence Act (NSW) 1995

CASES CITED:
R v Griffiths (1977) 137 CLR 293 at 335
Chow v DPP (1992) 28 NSWLR 593 at 599
R v Sagiv (1986) 22 A Crim R 73
R v Boag (1994) 73 A Crim R 35
R vR v Chiron [1980] 1 NSWLR 218 at 235
R v Davies (1993) 19 MVR 481
House v R (1936) 55 CLR 499

DECISION: The applicant be granted leave to amend the grounds of the application by adding the proposed new ground; the applicant be granted leave to appeal the decisions of 3 May 1999 and 9 June 1999 refusing leave to withdraw his plea of guilty; each appeal be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60307/99

WOOD CJ AT CL
SULLY J

SIMPSON J

11 February 2000

REGINA v Thomas MARCHANDO

Judgment

WOOD CJ at CL:

1    I have had the advantage of reading in draft the reasons for judgment of Simpson J. I agree with her reasons and the orders she proposes.

**********

IN THE COURT OF
CRIMINAL APPEAL

60307/99

WOOD CJ AT CL
SULLY J

SIMPSON J

11 February 2000

REGINA v Thomas MARCHANDO

Judgment

SULLY:

2    I agree with Simpson J.

**********
IN THE COURT OF
CRIMINAL APPEAL

60307/99

WOOD CJ AT CL
SULLY J

SIMPSON J

11 February 2000

REGINA v Thomas MARCHANDO

Judgment

SIMPSON J :

3    The applicant seeks leave to appeal two separate decisions of Judge Coleman in the District Court, in each case refusing leave to withdraw a plea of guilty entered by him on 10 February 1999 to a charge of being knowingly concerned in the importation of prohibited drugs.
4    The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on…

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 Marchando

Details

AGLC: R v Marchando [2000] NSWCCA 8
Case: [2000] NSWCCA 8
Decision Date: 11 February 2000

CaseChat Overview and Summary

In the matter of Regina v Thomas Dale Marchando, the applicant sought leave to appeal two separate decisions of Judge Coleman in the District Court. The decisions in question were refusals to permit the applicant to withdraw his plea of guilty to being knowingly concerned in the importation of prohibited drugs. The applicant sought to add a new ground of appeal, arguing that Judge Coleman erred in ruling admissible, and declining to exercise his discretion to refuse to admit, the video link evidence of Mr Shandi. The court granted leave to appeal and amend the grounds of appeal but dismissed the appeal. The applicant's plea of guilty was found to be attributable to a genuine consciousness of guilt, and the judge's discretion to admit the Shandi evidence was not miscarried. The applicant's assertions of innocence, confusion about the charge, and pressure from legal advisers were rejected by the judge, who found the applicant's evidence to be unreliable. The court upheld the judge's findings of fact and dismissed the appeal.

Orders