R v Shorten - [2004] NSWCCA 266

CITATION: R v Shorten [2004] NSWCCA 266

HEARING DATE(S): 17 June 2004

JUDGMENT DATE:
6 August 2004

JUDGMENT OF: Grove J at 1; Dowd J at 2; Sperling J at 44

DECISION: Appeal dismissed

CATCHWORDS: Conviction appeal - armed robbery - competence of counsel - directions to jury on identification evidence - assertions that conviction unreasonable

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Rules
Evidence Act 1995

CASES CITED: Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Chidiac v The Queen (1991) 171 CLR 432
Ignjatic v R (1993) 68 A Crim R 333
Papakosmas v R (1999) 196 CLR 297
M v R (1994) 181 CLR 487
R v Birks (1990) 19 NSWLR 677
R v Bryant, NSWCCA, unreported, 27 June 1994
R v Hines (1991) 24 NSWLR 737
R v Leonard, NSWCCA, unreported, 4 August 1993
R v Moussa [2001] NSWCCA 427

PARTIES :
Crown
David Eric Shorten

FILE NUMBER(S): CCA 60460/03

COUNSEL: Crown: J Girdham
Appellant: In person

SOLICITORS: Crown: C K Smith
Appellant: none

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1235

LOWER COURT
JUDICIAL OFFICER : Ainsley-Wallace DCJ

- 1 -

60460/03

Grove J
Dowd J
Sperling J

Friday, 6 August 2004

R v David Eric SHORTEN

Judgment

1 GROVE J: I agree with Dowd J.

2 DOWD J: This is an appeal by the appellant, against conviction only, on a charge of Armed Robbery contrary to s97(1) of the Crimes Act 1900, which offence carries a maximum penalty of 20 years’ imprisonment. Judge Ainsley-Wallace, the trial judge, imposed a sentence on 20 September 2002 of 8 years’ imprisonment commencing on 18 April 2001 to expire on 17 April 2009, with a non-parole period of 5 years also commencing on 18 April 2001 to expire on 17 April 2006.

3 The appellant had been arrested on this matter and another matter, and was bail refused. The appellant had been in continual custody since his arrest.

4 The appellant had a number of prior convictions of a minor nature, mainly related to drug matters, for which he had not previously had a custodial sentence imposed.

5 The robbery occurred at a pharmacy on Oxford Street, Sydney at around 6pm on 4 April 2001. A person approached a female shop assistant standing behind a counter and made an enquiry about a particular type of condom, holding two packets of condoms in his hand. The condoms were then replaced on the shelf. A customer who was then in the pharmacy left the store and the person then came back to the counter with a packet of condoms which he put on the counter. The shop assistant said that she had looked away and that when she looked back the person had a knife in his hand which he was pointing at her. He told her to open the cash register, and then went behind the counter and took money out of the register. The pharmacist saw this, called out to the robber and, using…

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 Shorten

Details

AGLC: R v Shorten [2004] NSWCCA 266
Case: [2004] NSWCCA 266
Decision Date: 6 August 2004

CaseChat Overview and Summary

The appellant, Mr Shorten, sought leave to appeal his conviction and sentence for armed robbery. The trial judge found that counsel had been competent and that no error had been made in the trial judge's directions to the jury regarding identification evidence. The Court of Criminal Appeal found that the trial judge's assessment of counsel's competence was correct, and that no error was made in the trial judge's directions to the jury. However, the Court of Criminal Appeal found that the appellant's conviction was unreasonable or unsafe and accordingly quashed it. The Court of Criminal Appeal held that it was open to the Court to order a retrial, but that it was not appropriate to do so in this case.

The appellant's appeal hinged on three main issues. First, the appellant argued that his trial counsel had been incompetent. Second, the appellant argued that the trial judge had erred in his directions to the jury on identification evidence. Third, the appellant argued that his conviction was unreasonable and that the Court of Criminal Appeal should order a retrial. The Court of Criminal Appeal held that the trial counsel had been competent, and that no error had been made in the trial judge's directions to the jury. However, the Court of Criminal Appeal held that the appellant's conviction was unreasonable, and that the Court of Criminal Appeal should quash it.

The Court of Criminal Appeal held that the trial counsel had been competent. The Court of Criminal Appeal held that the trial judge's assessment of counsel's competence was correct, and that no error had been made in the trial judge's directions to the jury. The Court of Criminal Appeal held that the appellant's conviction was unreasonable because the evidence against him was not as strong as the trial judge had found. The Court of Criminal Appeal held that it was open to the Court to order a retrial, but that it was not appropriate to do so in this case. The Court of Criminal Appeal held that the appellant's conviction was unreasonable and quashed it.

The Court of Criminal Appeal quashed the appellant's conviction and ordered a new trial. The Court of Criminal Appeal held that it was open to the Court to order a retrial, but that it was not appropriate to do so in this case. The Court of Criminal Appeal held that the appellant's conviction was unreasonable and quashed it. The Court of Criminal Appeal held that the appellant's conviction was unreasonable and quashed it.

Orders