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R v Neale

R v Neale

Case [2004] NSWCCA 311 10 September 2004

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Reported Decision:
148 A Crim R 493

New South Wales

Court of Criminal Appeal

CITATION: Regina v Neale [2004] NSWCCA 311

HEARING DATE(S): 25 August 2004

JUDGMENT DATE:
10 September 2004

JUDGMENT OF: Grove J at 1; Sully J at 2; Kirby J at 87

DECISION: Appeal against conviction dismissed; Leave granted to appeal against sentence; Sentence passed on 15 November 2002 varied as to non-parole period; non-parole period reduced to period of 15 years to date from 9 December 2000 and to expire on 8 December 2015; Appeal against sentence otherwise dismissed

LEGISLATION CITED: Evidence Act 1995 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED: ITA 2003 139 A Crim R 340
Briginshaw and Briginshaw 1938 60 CLR at 362
R v Birks 1990 19 NSWLR 677
R v Twala CCA (unrep) 4 November 1994
R v Nai Poon [2003] NSWCCA 42
R v Holyoak 1985 82 A Crim R 502

PARTIES :
Regina
James Linaker Neale

FILE NUMBER(S): CCA 2002/2814

COUNSEL: M. J. King - Crown
J. S. Stratton SC/M. S. Pickin - Appellant

SOLICITORS: C'wealth Director of Public Prosecutions - Crown
Legal Aid Commission of NSW - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0869

LOWER COURT
JUDICIAL OFFICER : Hock DCJ

2002/2814

GROVE J
SULLY J
KIRBY J
10 September 2004

REGINA v JAMES LINAKER NEALE

Judgment

1 GROVE J: I agree with Sully J.

2 SULLY J: On 26 November 2001 the appellant, Mr. James Linaker Neale, was presented for trial in the District Court before her Honour Judge Hock. He was so presented upon an indictment charging that between about July 2000 and 9 December 2000 at Sydney and elsewhere he had been knowingly concerned in the importation into Australia of a prohibited import, namely a quantity of the drug that is described conventionally as MDMA or Ecstasy, the quantity imported having been not less than the commercial quantity as prescribed by law for that particular drug.

3 The appellant pleaded not guilty and he was put accordingly upon his trial by jury. That trial continued until 17 December 2001, on which day the jury found the appellant guilty as charged. The appellant stood for sentence accordingly on 15 November 2002. Judge Hock sentenced the appellant to imprisonment for life and set a non-parole period of imprisonment for 21 years.

4 The head sentence thus passed upon the appellant by her Honour is the statutory maximum penalty applicable to the crime of which the appellant was found guilty by the jury. The quantity of MDMA/Ecstasy which is prescribed by law as a commercial quantity of that substance is 500 grams or more. The particular MDMA/Ecstasy in connection with which the appellant was tried and convicted was imported into Australia in the form of about 271,000 tablets having a gross weight of 105.54 kilograms; and a pure weight of 52.33 kilograms. The wholesale value of that consignment was estimated as lying somewhere between 2.7 million dollars and 5.4 million dollars.

5 A…

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 Neale

Details

AGLC: R v Neale [2004] NSWCCA 311
Case: [2004] NSWCCA 311
Decision Date: 10 September 2004

CaseChat Overview and Summary

In the case of Regina v Neale, the appellant, James Linaker Neale, appealed against his conviction and sentence for knowingly being involved in the importation of a commercial quantity of MDMA, commonly known as Ecstasy, into Australia. The appeal was heard by the New South Wales Court of Criminal Appeal, with Grove J, Sully J, and Kirby J delivering the judgment. The court dismissed the appeal against the conviction but granted leave to appeal against the sentence. The sentence was varied to reduce the non-parole period to 15 years, to expire on 8 December 2015.

The legal issues in the appeal related to the admissibility of certain evidence, the adequacy of legal representation, and the appropriateness of the sentence. The court found that the appellant's conviction was based on substantial evidence and that there had not been a miscarriage of justice. The court also found that the appellant's legal representation was adequate and that there was no ground to interfere with the trial judge's assessment of the case. However, the court found that the non-parole period of 21 years set by the trial judge was excessively harsh, considering the appellant's age and life expectancy. The court reduced the non-parole period to 15 years, to expire on 8 December 2015.

Orders