R v Orchard

Case [2013] NSWCCA 342


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Orchard [2013] NSWCCA 342
Hearing dates:24 May 2013
Decision date: 24 December 2013
Before: Rothman J;
Fullerton J;
Beech-Jones J
Decision:

(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.
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Cases Cited: Arun v R [2010] NSWCCA 214
Browne v Dunn (1893) 6 R 67
Cesan v R [2008] HCA 52; 236 CLR 358
DF v R [2012] NSWCCA 171
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Fleming v R [1998] HCA 68; 197 CLR 250
Giourtalis, Angelos v R [2013] NSWCCA 216
Hajje v R [2006] NSWCCA 23
Kanaan v R [2006] NSWCCA 109
Keir v R [2007] NSWCCA 149
Kho v R [2012] NSWCCA 71
Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68
Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
Llewellyn v R [2011] NSWCCA 66
Lysle v R [2012] NSWCCA 20
M v R [1994] HCA 63; 181 CLR 487
Morris v R [1987] HCA 50; 163 CLR 454
MWJ v R [2005] HCA 74; 80 ALJR 329
Nudd v R [2006] HCA 9; 80 ALJR 614
Perez v R [2008] NSWCCA 46
R v Birks (1990) 19 NSWLR 677
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Moffatt [2000] NSWCCA 174; 112 Crim R 201
Rasic v R [2009] NSWCCA 202
RWC v R [2013] NSWCCA 58
SKA v R [2011] HCA 13; 243 CLR 400
TKWJ v R [2002] HCA 46; 212 CLR 124
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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.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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