R v Nicholson; ex parte DPP (Cth) - [2004] QCA 393

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nicholson; ex parte DPP (Cth); R v Hyde-Harris; ex parte DPP (Cth) [2004] QCA 393

PARTIES:

R
v
NICHOLSON, Grant
(appellant)

R
v
HYDE-HARRIS, Philip Anthony
(appellant)

R
v
NICHOLSON, Grant
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

R
v
HYDE-HARRIS, Philip
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 214 of 2004
CA No 215 of 2004
CA No 225 of 2004
CA No 226 of 2004
DC No 935 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction
Sentence Appeals by Cwth DPP

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2004

JUDGES:

de Jersey CJ, Jerrard JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.        In CA No 214 of 2004 and CA No 215 of 2004:            Appeals against conviction dismissed
2.        In CA No 225 of 2004 and CA No 226 of 2004:
           (a)       Appeals allowed
           (b)       The sentence imposed in the case of the        respondent Hyde-Harris be varied to   provide for release after the serving of 15   months imprisonment, and otherwise   confirmed
           (c)       The sentence imposed in the case of the        respondent Nicholson be varied to provide            for release after the serving of 12 months   imprisonment, and otherwise confirmed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where each appellant was convicted by a jury in the District Court of attempting to defraud the Commonwealth – whether the learned trial judge erred in his direction to the jury concerning the failure of the respective appellants to give evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where Hyde-Harris was sentence to three years imprisonment to be released after serving nine months – where Nicholson was sentenced to two and a half years imprisonment, to be released after six months – where the Commonwealth Director of Public Prosecutions appeals against the sentences imposed – whether the sentences imposed were manifestly inadequate

Azzopardi v R (2001) 205 CLR 50, cited
R v Cappadona (2001) 122 A Crim R 52; [2001] NSWCCA 194, considered
R v Kazacos; ex parte Commonwealth Director of Public Prosecutions (1999) 106 A Crim R 252, distinguished
R v Keevers; R v Filewood [2004] QCA 207; CA No 90 of 2004; CA No 91 of 2004; CA No 98 of 2004; CA No 132 of 2004, 18 June 2004, cited
R v Macris [2004] NSWCCA 261, considered
R v McFarlane, unreported, Queensland District Court, Indictment No 434 of 2003, 30 January 2004,…

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.

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Details

Case: [2004] QCA 393
Decision Date: 22 October 2004

CaseChat Overview and Summary

The appeals in this case were brought by the Commonwealth Director of Public Prosecutions against the sentences imposed on Hyde-Harris and Nicholson, who were convicted by a jury in the District Court of attempting to defraud the Commonwealth. The Director of Public Prosecutions argued that the sentences were manifestly inadequate. The appeals against conviction were dismissed, but the appeals against sentence were allowed. The Court varied the sentences to provide for release after the serving of 15 months for Hyde-Harris and 12 months for Nicholson, and otherwise confirmed the sentences.

The central legal issue in this case was whether the trial judge erred in his direction to the jury concerning the failure of the appellants to give evidence. The Court considered the summing up as a whole and found that the trial judge did not err in his direction to the jury. The Court also considered whether the sentences imposed were manifestly inadequate. The Court found that the sentences were inadequate and varied them accordingly.

In reaching its decision, the Court considered the totality of the circumstances, including the nature and gravity of the offence, the culpability of the offenders, and the need for deterrence and denunciation. The Court held that the trial judge's direction to the jury was not erroneous and that the sentences imposed were manifestly inadequate. The Court varied the sentences to provide for release after the serving of 15 months for Hyde-Harris and 12 months for Nicholson, and otherwise confirmed the sentences.

Orders

Orders of the court

1. In CA No 214 of 2004 and CA No 215 of 2004: Appeals against conviction dismissed

2. In CA No 225 of 2004 and CA No 226 of 2004:

(a) Appeals allowed

(b) The sentence imposed in the case of the respondent Hyde-Harris be varied to provide for release after the serving of 15 months imprisonment, and otherwise confirmed

(c) The sentence imposed in the case of the respondent Nicholson be varied to provide for release after the serving of 12 months imprisonment, and otherwise confirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nicholson; ex parte DPP (Cth); R v Hyde-Harris; ex parte DPP (Cth) [2004] QCA 393
PARTIES:	R v NICHOLSON, Grant (appellant) R v HYDE-HARRIS, Philip Anthony (appellant) R v NICHOLSON, Grant (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant) R v HYDE-HARRIS, Philip (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 214 of 2004 CA No 215 of 2004 CA No 225 of 2004 CA No 226 of 2004 DC No 935 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction Sentence Appeals by Cwth DPP
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2004
JUDGES:	de Jersey CJ, Jerrard JA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. In CA No 214 of 2004 and CA No 215 of 2004: Appeals against conviction dismissed 2. In CA No 225 of 2004 and CA No 226 of 2004: (a) Appeals allowed (b) The sentence imposed in the case of the respondent Hyde-Harris be varied to provide for release after the serving of 15 months imprisonment, and otherwise confirmed (c) The sentence imposed in the case of the respondent Nicholson be varied to provide for release after the serving of 12 months imprisonment, and otherwise confirmed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE – where each appellant was convicted by a jury in the District Court of attempting to defraud the Commonwealth – whether the learned trial judge erred in his direction to the jury concerning the failure of the respective appellants to give evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where Hyde-Harris was sentence to three years imprisonment to be released after serving nine months – where Nicholson was sentenced to two and a half years imprisonment, to be released after six months – where the Commonwealth Director of Public Prosecutions appeals against the sentences imposed – whether the sentences imposed were manifestly inadequate
Azzopardi v R (2001) 205 CLR 50, cited R v Cappadona (2001) 122 A Crim R 52; [2001] NSWCCA 194, considered R v Kazacos; ex parte Commonwealth Director of Public Prosecutions (1999) 106 A Crim R 252, distinguished R v Keevers; R v Filewood [2004] QCA 207; CA No 90 of 2004; CA No 91 of 2004; CA No 98 of 2004; CA No 132 of 2004, 18 June 2004, cited R v Macris [2004] NSWCCA 261, considered R v McFarlane, unreported, Queensland District Court, Indictment No 434 of 2003, 30 January 2004,…