(1) Leave to raise ground 4 of the conviction appeal granted.
(2) Leave to raise grounds 3 and 5A of the conviction appeal refused.
(3) The appeal against the appellant's conviction on 12 August 2011 dismissed.
(4) Leave to appeal against the sentence imposed on 12 August 2011 granted; and
(5) The appeal against the sentence imposed on 12 August 2011 dismissed.
Catchwords:
CRIMINAL LAW - conviction appeal - from judge alone trial - supply a commercial quantity of methylamphetamine - whether trial judge erred in finding independent evidence corroborative of evidence of key witness involved in criminal transaction - whether trial judge erred in failing to give warning - that corroboration was required before evidence of witness could be acted upon - Markuleski direction - whether reasons inadequate - whether conduct of trial judge rendered the trial unfair - alleged excessive intervention by trial judge in cross examination by defence counsel - critical comments made about counsel - defence counsel ultimately dismissed and withdrew from proceedings - whether verdict unreasonable and unsupported by the evidence.
CRIMINAL LAW - sentence appeal - application for leave - whether trial judge erred in approach to standard no parole period - whether insufficient weight given to mental health and other health issues of appellant - whether sentence manifestly excessive.
[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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AGLC
R v Orchard [2013] NSWCCA 342
Case
[2013] NSWCCA 342
Decision Date
CaseChat Overview and Summary
The appellant, Orchard, appeals against his conviction for supplying a commercial quantity of methylamphetamine, and the sentence imposed by the trial judge. The trial was conducted before a judge alone, and the appellant argues that the judge erred in finding independent evidence corroborative of the evidence provided by a key witness involved in the criminal transaction. The appellant contends that the judge should have given a warning that corroboration was required before the evidence of the witness could be acted upon, and that the reasons provided for the finding of corroboration were inadequate. The appellant further submits that the conduct of the trial judge rendered the trial unfair, due to alleged excessive intervention in cross-examination by defence counsel, critical comments made about counsel, and the dismissal of defence counsel who subsequently withdrew from the proceedings. The appellant argues that the verdict was unreasonable and unsupported by the evidence.
In relation to the sentence appeal, the appellant contends that the trial judge erred in their approach to determining the standard non-parole period, and that insufficient weight was given to the appellant's mental health and other health issues. The appellant submits that the sentence imposed was manifestly excessive. The court must consider whether the trial judge erred in their approach to the corroboration requirement, and if the trial was rendered unfair due to the judge's conduct. Additionally, the court must assess whether the sentence imposed was manifestly excessive, taking into account the appellant's health issues.
The court found that the trial judge did not err in finding independent evidence corroborative of the key witness's evidence, and that the reasons provided were sufficient. The court held that the conduct of the trial judge did not render the trial unfair, and that the dismissal of defence counsel did not impact the fairness of the proceedings. The court found that the verdict was not unreasonable or unsupported by the evidence. In relation to the sentence appeal, the court found that the trial judge did not err in their approach to determining the standard non-parole period, and that sufficient weight was given to the appellant's health issues. The court held that the sentence imposed was not manifestly excessive.
The appeal against conviction is dismissed. The application for leave to appeal the sentence is dismissed.