Rend v R

Case [2006] NSWCCA 41 14 March 2006

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Reported Decision:
160 A Crim R 178

New South Wales

Court of Criminal Appeal

CITATION: Rend v Regina [2006] NSWCCA 41

HEARING DATE(S): 15/02/06

JUDGMENT DATE:
14 March 2006

JUDGMENT OF: James J at 1; Buddin J at 113; Hall J at 114

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed. Appellant re-sentenced [par 115].

CATCHWORDS: CRIMINAL LAW – CONVICTION APPEAL – offence of robbery – whether a miscarriage of justice was occasioned by the Crown prosecutor’s address which relied on lies told by the appellant as evidence of guilt – whether a miscarriage of justice was occasioned by the failure of the trial judge to properly direct the jury in relation to lies alleged to have been told by the appellant – whether the trial judge erred in allowing the Crown to call evidence in reply – SENTENCE – whether sentencing judge erred in taking into account as aggravating factors - prior convictions – offence committed in company - whether disparity with co-offender’s sentence gives rise to a justifiable sense of grievance

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act
Evidence Act

CASES CITED: Browne v Dunn (1893) 6 R 67
Edwards v The Queen (1993) 178 CLR 193
MWJ v The Queen [2005] HCA 74
Postiglione v The Queen (1995-1996) 189 CLR 295
R v Blair (2005) 152 A Crim R 462
R v De Simoni (1981) 147 CLR 383
R v Douglas [2005] NSWCCA 419
R v Johnson [2004] NSWCCA 76
R v Tangye (1997) 92 A Crim R 545
The Queen v Chin (1984-1985) 157 CLR 671
Weiss v The Queen [2005] HCA 81
Zoneff v The Queen (2000) 200 CLR 234

PARTIES: Susan Betty REND v REGINA

FILE NUMBER(S): CCA 2005/1894

COUNSEL: D Dhanji - Appellant
Ms J Girdham - Crown

SOLICITORS: Steve O'Connor - Appellant
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0086

LOWER COURT JUDICIAL OFFICER: Nield DCJ

2005/1894

JAMES J
BUDDIN J
HALL J
Tuesday 14 March 2006

Susan Betty REND v REGINA

Judgment

1 JAMES J: Susan Betty Rend appealed against her conviction on one charge of robbery. In the event of her appeal against conviction being dismissed, she applies for leave to appeal against the sentence imposed on her.

2 The appellant’s trial took place in January 2005 in the District Court before his Honour Judge Nield and a jury. At the trial the appellant was arraigned on an indictment containing three counts, to all of which she pleaded not guilty, namely a charge of robbery while armed with an offensive weapon (count 1), an alternative charge of robbery (count 2) and a charge of larceny of a motor vehicle (count 3). All of the offences were alleged to have been committed on 1 September 2003. The jury found the appellant not guilty on counts 1 and 3 and guilty on count 2. For the offence of robbery Judge Nield…

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 Rend v R

Details

AGLC: Rend v R [2006] NSWCCA 41
Case: [2006] NSWCCA 41
Decision Date: 14 March 2006

CaseChat Overview and Summary

The appellant in this case appealed against their conviction for the offence of robbery and their subsequent sentence. The appeal was heard by the High Court of Australia. The central issue was whether there was a miscarriage of justice due to the Crown prosecutor’s address, which relied on the appellant's own lies as evidence of guilt, and whether the trial judge failed to adequately direct the jury on the lies told by the appellant. The court also considered if the trial judge erred in allowing the Crown to call evidence in reply.

The High Court determined that there was no miscarriage of justice in the prosecutor's address, as it did not improperly rely on the appellant's lies. The court found that the trial judge did not err in directing the jury, as the instructions provided were sufficient. Additionally, the court held that the trial judge did not err in permitting the Crown to call evidence in reply, as it was within the bounds of proper judicial discretion. The appeal against the conviction was thus dismissed.

The Court also examined whether the sentencing judge erred in considering prior convictions and the nature of the offence as aggravating factors. The court found that the sentencing judge did not err in these considerations. Furthermore, the court concluded that the disparity in sentencing between the appellant and their co-offender did not give rise to a justifiable sense of grievance. Consequently, the appeal against the sentence was also dismissed.

No further orders were made by the court.

Orders