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Regina v Cordero-Vidal

Regina v Cordero-Vidal

Case [2002] NSWCCA 36 10 April 2002

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Reported Decision:
(2002) 128 A Crim R 543

New South Wales

Court of Criminal Appeal

CITATION: Regina v Cordero-Vidal [2002] NSWCCA 36 revised - 27/11/2002

FILE NUMBER(S): CCA 60736/00

HEARING DATE(S): 22/2/02

JUDGMENT DATE:
10 April 2002

PARTIES :

Regina (Respondent)
Juan Cordero-Vidal (Appellant)

JUDGMENT OF: Meagher JA at 1; Wood CJ at CL at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/0018

LOWER COURT JUDICIAL
OFFICER : Stewart ADCJ

COUNSEL : R Maidment SC (Regina)
P Hamill (Appellant)

SOLICITORS: Commonwealth DPP
TA Murphy (Appellant)

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Customs Act 1901 (Cth)
Evidence Act 1995

CASES CITED:
Cleland v the Queen (1982) 151 CLR 1
Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
Postiglioni v The Queen (1997) 189 CLR 295
Ratten v The Queen (1974) 131 CLR 510
R v Abusfiah (1991) 24 NSWLR 531
R v Esposito (1998) 45 NSWLR 442
R v Glusheski (1986) 33 A Crim R 193
R v Haeney (unreported, Supreme Court NSW, 13 June 1978)
R v McCarthy & Ryan (1993) 71 A Crim R 395
R v Moussa [2001] NSWCCA 427
R v Roberts [2001] NSWCCA 163
R v Salgado-Silva [2001] NSWCCA 423
R v Stackelroth (unreported) NSWCCA, 3 April 1996
Regina v Donnelly [2001] NSWCCA 394
Regina v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
Regina v Wong [1999] NSWCCA 420; 48 NSWLR 340
Wong v The Queen [2001] HCA 64; 185 ALR 233

DECISION: Appeal against conviction dismissed. Appeal against severity of sentence see paragraph 91

60736/00

MEAGHER JA
WOOD CJ at CL
BELL J

10 April, 2002

REGINA v Juan CORDERO-VIDAL

Judgment

1 MEAGHER JA: I agree with Bell J.

2 WOOD CJ at CL: I agree with Bell J.

3 BELL J: On 22 August 2000 the appellant was arraigned in the Sydney District Court on an indictment charging him that on 3 November 1999 at Sydney he imported into Australia prohibited imports (cocaine) in an amount not less than the commercial quantity. The offence is created by s 233B(1)(b) of the Customs Act 1901 (Cth). It carries a maximum penalty of life imprisonment. The appellant entered a plea of not guilty and stood his trial before acting Judge Stewart and a jury. On 5 September 2000 the jury returned a verdict of guilty.

4 On 3 November 2000 the appellant was sentenced to a term of sixteen years imprisonment to date from 3 November 1999. A non-parole period of eleven years was specified.

5 By notice of appeal dated 6 November 2000 the appellant appeals against his conviction and seeks leave to appeal against the severity of the sentence imposed on him.

6 The facts relied on in support of the Crown case may be conveniently summarised by reference to the outline contained in the respondent’s written submissions:

“On 26 September 1999 the appellant and his co-offender…

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 Regina v Cordero-Vidal

Details

AGLC: Regina v Cordero-Vidal [2002] NSWCCA 36
Case: [2002] NSWCCA 36
Decision Date: 10 April 2002

CaseChat Overview and Summary

Juan Cordero-Vidal was convicted of importing into Australia, on 3 November 1999, cocaine in an amount not less than the commercial quantity. The offence is created by s 233B(1)(b) of the Customs Act 1901 (Cth). The maximum penalty is life imprisonment. Cordero-Vidal was sentenced to a term of sixteen years imprisonment to date from 3 November 1999. A non-parole period of eleven years was specified. Cordero-Vidal appeals against his conviction and sentence. By notice of appeal dated 6 November 2000, Cordero-Vidal appealed against his conviction and sought leave to appeal against the severity of the sentence imposed on him. He raises two grounds of appeal. The first contends that there was a miscarriage of justice as the result of the inability of Cordero-Vidal to call evidence from his co-accused, Salgado-Silva, which tends to establish his innocence of the offence charged and which, if adduced, was likely to lead to a different result in the trial. The second contends that the trial miscarried as a result of the conduct of the trial judge which diminished and undermined: (i) the ability of counsel for the appellant to properly represent his client; (ii) the credibility of counsel for the appellant in the eyes of the jury; (iii) the evidence of the appellant and the case presented on his behalf in such a way and to such an extent that the appellant did not receive a fair trial. The Court dismissed the appeal against conviction and granted leave to appeal against the severity of sentence. The appeal against sentence was allowed and the non-parole period was reduced to ten years and eight months. The first date upon which the appellant will be eligible for release on parole is 2 July 2010.

Orders