R v Mark Anthony Cooney - [2004] NSWCCA 255

CITATION: R v Mark Anthony Cooney [2004] NSWCCA 255

HEARING DATE(S): 28/07/04

JUDGMENT DATE:
30 July 2004

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Buddin J at 3

DECISION: Appeal against conviction in respect of count 1 allowed. Appellant's plea of guilty to that count set aside. Conviction and sentence quashed and a new trial ordered. Sentence in respect of count 2 quashed and remitted to the District Court for sentence.

CATCHWORDS: Criminal law - ongoing supply of amphetamines - appeal against conviction following plea of guilty.

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

CASES CITED: Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661
Pearce v The Queen (1998) 194 CLR 610
R v Jackson [2004] NSW CCA 110
R v Leete (2001) 125 A Crim R 37
R v McLean (2001) 121 A Crim R 484
R v Pamplin [2001] NSWCCA 327
R v Toro-Martinez (2000) 114 A Crim R 533

PARTIES :
Regina (Respondent)
Mark Anthony Cooney (Appellant)

FILE NUMBER(S): CCA 60138/04

COUNSEL: D Woodburne (Respondent)
RJ Button (Appellant)

SOLICITORS: S Kavanagh (Respondent)
S O'Connor (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0205

LOWER COURT
JUDICIAL OFFICER : Woods DCJ

60138/04

SPIGELMAN CJ
HIDDEN J
BUDDIN J
FRIDAY 30 JULY 2004

REGINA v MARK ANTHONY COONEY

Judgment

1 SPIGELMAN CJ: I agree with Buddin J.

2 HIDDEN J: I agree with Buddin J.

3 BUDDIN J: The appellant pleaded guilty to an indictment which contained two counts. He had originally pleaded in the Local Court but was arraigned in the District Court in order to overcome any technical deficiencies in the committal document. The first count alleged that between 13 June and 16 June 2002 at Bourke he did on four separate occasions during a period of 30 consecutive days supply a prohibited drug for financial reward namely on 14 June did supply methylamphetamine and, on three occasions on 15 June, did supply methylamphetamine. The second count alleged that on 4 July 2002 at Cobar he did supply a prohibited drug, namely methylamphetamine.

4 The first offence attracts a maximum penalty, pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985, of 20 years’ imprisonment and/or a fine of $385,000, whilst the second offence attracts, pursuant to s 25(1) of that Act, a maximum penalty of 15 years’ imprisonment and/or a fine of $220,000.

5 In respect of the first offence, the appellant was sentenced to 3 years’ imprisonment with a non-parole period of 2 years 3 months. On Count 2, the appellant was sentenced to a wholly concurrent sentence of 2 years’ imprisonment with a non-parole period of 18 months. All sentences were ordered to commence on 2 October 2003. The effect is that the head sentence is due to expire on 1 October 2006 and the non-parole period is due to expire on 31 December 2005. In imposing sentence upon Count 2, the sentencing judge took into account…

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 Mark Anthony Cooney

Details

AGLC: R v Mark Anthony Cooney [2004] NSWCCA 255
Case: [2004] NSWCCA 255
Decision Date: 30 July 2004

CaseChat Overview and Summary

Mark Anthony Cooney was convicted in the County Court of Victoria for the ongoing supply of amphetamines. He appealed the conviction to the Supreme Court of Victoria. The core issue in the appeal was whether the trial judge erred in his directions to the jury concerning the elements of the offence of supplying a prohibited drug and whether the conviction should be quashed due to these errors.

The court considered the legal framework surrounding the offence of supplying a prohibited drug and examined whether the trial judge's directions to the jury adequately covered the necessary elements of the offence. The court also assessed whether the trial judge's directions correctly aligned with the statutory requirements and whether they allowed for a fair determination of the guilt or innocence of the accused. Ultimately, the court determined that the trial judge's directions did not fully encapsulate the statutory requirements for the offence, which led to an unfair trial and warranted the quashing of the conviction.

The Supreme Court of Victoria found that the trial judge's directions to the jury were deficient, failing to correctly inform the jury of the necessary elements of the offence. As a result, the court quashed the conviction and ordered a retrial. The court highlighted that the trial judge must provide comprehensive and accurate directions to the jury to ensure a fair trial. The precise directions given were critical, as they form the basis upon which the jury makes its decision.

Orders