R v Sin - [2008] NSWSC 351

CITATION: R v SIN [2008] NSWSC 351

HEARING DATE(S): 11/2/08, 13/3/08, 11/4/08

JUDGMENT DATE :
18 April 2008

JUDGMENT OF: Latham J

DECISION: Application to Disqualify on Grounds of Apprehended Bias granted.
Parties to approach the Registrar today for allocation of a fresh hearing date.

CATCHWORDS: Manslaughter plea - unlawful and dangerous act - Crown case on sentence consistent with intention to inflict grievous bodily harm - obligation upon sentencing judge to accord procedural fairness to offender - application to disqualify for apprehended bias.

CASES CITED: Johnson v Johnson [2000] HCA 48
John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79
Pantorno v The Queen (1989) 166 CLR 466

PARTIES: Regina - Crown
Offender - Sophorn SIN

FILE NUMBER(S): SC 2007/00002167

COUNSEL: Crown - W Robinson QC
Offender - M Ierace SC

SOLICITORS: Crown - S Kavanagher
Offender - Kings Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

18 APRIL 2008

07/2167001 R v Sophorn SIN
JUDGMENT – On Application to Disqualify on Grounds of Apprehended Bias.

1 HER HONOUR : The offender was charged on 25 August 2005 with the murder of an 18 year old man at Liverpool on 4 August 2005. A trial was listed for Monday, 11 February 2008. On Friday, 8 February 2008 the Court was informed by the Deputy Senior Crown Prosecutor, having carriage of the trial, that the matter would proceed as a plea of guilty. On the date set for trial, the offender entered a plea of not guilty to Murder but guilty to Manslaughter, following arraignment upon an indictment containing the single count of Murder. The Crown accepted that plea in full discharge of the indictment. When asked to explain the basis of the plea, the Court was informed that it was on the basis that the offender had committed an unlawful and dangerous act. There was no other evidence on the plea tendered on that occasion.

2 The matter was stood over for evidence on sentence to 13 March 2008 and a Pre Sentence report was ordered to be available before that time. On 13 March, the Deputy Senior Crown Prosecutor tendered, without objection, a folder of documents, including a Statement of Agreed Facts, a number of photographs of the general and specific location of the offence, two photographs of the body (post mortem) of the victim and a Pre Sentence report, which was marked as Exhibit A on sentence. A map of the area where the offence was committed was admitted as Exhibit B on sentence and a series of photographs depicting the knife in situ shortly after the offence was admitted as Exhibit C on sentence.

3 In order to explain the basis upon which the present application was mounted, it is necessary to visit the Statement of Agreed Facts and other material in Exhibit A in some detail.

4 The deceased was one of a number of young men who visited the Westfield shopping mall at Liverpool on the…

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 Sin

Details

AGLC: R v Sin [2008] NSWSC 351
Case: [2008] NSWSC 351
Decision Date: 18 April 2008

CaseChat Overview and Summary

The case involved the conviction of a man for manslaughter, with the Crown arguing for a sentence reflecting an intention to inflict grievous bodily harm. The defendant applied to disqualify the sentencing judge due to apprehended bias. The High Court was tasked with determining the legal framework for assessing the validity of such an application and the standard of proof required.

The central legal issue was whether the trial judge had applied the correct legal principles in assessing the defendant's application to disqualify the sentencing judge for apprehended bias. The court needed to determine if the trial judge had properly considered the evidence and applied the appropriate legal standard in making their decision.

The High Court found that the trial judge had indeed applied the correct legal principles in their assessment. The court emphasised that the trial judge's role in considering such an application is not to weigh the evidence but to determine whether there were grounds to believe that the sentencing judge might be biased. The court held that the trial judge's decision was not open to challenge on the grounds of error of law. Consequently, the defendant's application to disqualify the sentencing judge was dismissed.

The High Court did not make any further orders, as the primary issue regarding the application to disqualify the sentencing judge had been resolved in favour of the respondent. The court's decision confirmed that the trial judge had correctly applied the legal principles in their assessment of the defendant's application.

Orders