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R v Sepulveda

R v Sepulveda

Case [2003] NSWCCA 131 12 May 2003

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Sepulveda [2003] NSWCCA 131

FILE NUMBER(S):
60465/02

HEARING DATE(S): 3 March 2003

JUDGMENT DATE: 12/05/2003

PARTIES:
R v Heriberto Sepulveda

JUDGMENT OF: Giles JA Dunford J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 01/11/1186

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
B T Stratton QC & B Vasic - Applicant
D C Frearson - Crown

SOLICITORS:
Maxwell Berghouse & Ives - Applicant
S E O'Connor - Crown

CATCHWORDS:
First indictment presented following committal on the counts - second indictment then presented with additional counts on which there had not been committal - whether s 63A of Criminal Procedure Act 1986, by which an indictment may not be amended after presentation except with leave or by consent, was inapplicable because the new counts were ex officio counts - held was applicable - whether there was amendment of the first indictment - held was amendment - whether leave was properly given on basis that a Basha inquiry would meet any prejudice from absence of committal proceedings on the new counts - held no error in exercise of discretion - whether stay of proceedings on the new counts until committal proceedings had been conducted was properly refused - by majority, held no error in exercise of discretion.

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60465/02
DC 01/11/1186
GILES JA
DUNFORD J
SMART AJ
Monday 12 May 2003

R v SEPULVEDA

Judgment

GILES JA: This is an appeal by the alleged offender, pursuant to s 5F(3) of the Criminal Appeal Act 1912, against orders granting leave to present an amended indictment and dismissing an application for a stay of the proceedings on the new counts in the amended indictment. The orders were certified as proper for determination on appeal.
Background
On 30 August 2000 the appellant Heriberto Sepulveda was arrested and charged with twenty-two sexual offences. The complainant in relation to nineteen of the charges was Jamil Daaboul, born 17 April 1970, and the complainant in relation to the other three charges was his older brother Issam Daaboul, born 17 March 1969. The dates of the alleged offences ranged from 1 April 1979 to 31 December 1983.
Committal proceedings followed. Statements were served. By agreement, orders were made pursuant to s 48E of the Justices Act 1902 requiring the attendance of Jamil Daaboul, of the mother of Jamil and Issam Daaboul, and of the investigating police officer. They attended and were cross-examined.
The evidence of the police officer included that an older Daaboul brother, Bassam Daaboul born on 27 March 1966, had been approached by the police and had said that he did not wish to make a statement.
On 12 November 2001 the appellant was committed for trial to the Sydney District Court on nine of the nineteen charges concerning Jamil Daaboul and the three charges concerning Issam Daaboul. The remaining charges were dismissed.
On 23 November 2001 at the Sydney…

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 Sepulveda

Details

AGLC: R v Sepulveda [2003] NSWCCA 131
Case: [2003] NSWCCA 131
Decision Date: 12 May 2003

CaseChat Overview and Summary

In the matter of R v Sepulveda, the respondent was charged with various criminal offences. The case proceeded through the Supreme Court of New South Wales, where the primary issue was whether the court could proceed with additional counts in a second indictment after the initial presentation of a first indictment without committal on those counts. The legal question centred on the applicability of section 63A of the Criminal Procedure Act 1986, which restricts the amendment of an indictment post-presentation without leave or consent. The court examined whether these new counts could be treated as ex officio counts, exempt from the restrictions imposed by section 63A, or if they constituted an amendment requiring permission. The court held that the new counts were indeed amendments and that section 63A applied. The second indictment introduced counts not considered in the first, necessitating the respondent's leave to proceed. The court assessed whether the trial judge correctly exercised discretion by considering a Basha inquiry to mitigate any prejudice stemming from the absence of committal proceedings on the new counts, finding no error in the exercise of discretion. Additionally, the court deliberated on whether the refusal to stay the proceedings on the new counts until committal proceedings had occurred was proper. The majority concluded that the trial judge's decision to deny a stay was also a correct exercise of discretion.

The Supreme Court, through its reasoning, underscored the importance of the principles governing indictments and amendments within the criminal justice system. The court maintained that the statutory provisions concerning the amendment of indictments were designed to protect the rights of the accused, ensuring a fair trial by preventing surprise amendments that could prejudice the defence. By affirming that the second indictment constituted an amendment and that section 63A applied, the court reinforced the procedural safeguards inherent in the criminal law framework. The assessment of the Basha inquiry and the refusal to stay proceedings highlighted the balance between procedural fairness and the expeditious administration of justice. The court's decision, while addressing the specific context of this case, also provided broader guidance on the handling of similar situations in future proceedings, reaffirming the importance of due process and the rights of the accused.

Orders