Medium Neutral Citation: SALMON v R [2012] NSWCCA 119
Hearing dates: 1 May 2012
Decision date: 04 June 2012
Before: Hoeben JA at [1]
RS Hulme J at [192]
Schmidt J at [193]
Decision:
Conviction Appeal:
Appeal dismissed.
Sentence Appeal:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentences imposed by her Honour on 19 March 2010 are quashed.
(4) In lieu thereof, the applicant is sentenced as follows:
(a) On the charge of larceny, he is sentenced to a fixed term of imprisonment of 1 month to commence 14 December 2009 and to conclude 14 January 2010.
(b) On the charge of assault, he is sentenced to a fixed term of imprisonment of 3 months to commence 14 December 2009 and to conclude 13 March 2010.
(c) On the charge of robbery, the applicant is sentenced to a fixed term of imprisonment of 6 months to commence 14 December 2009 and to conclude 13 June 2010.

Catchwords: CRIMINAL LAW - CONVICTION APPEAL - theft assault and robbery convictions - appellant self-represented - whether hearsay evidence wrongfully admitted - whether Crown address caused miscarriage of justice - whether miscarriage of justice as a result of directions by trial judge - whether fresh evidence should be admitted on appeal - whether miscarriage of justice occurred as the result of conduct by appellant's counsel - whether revocation of bail during trial caused miscarriage of justice - whether jury verdict unreasonable - SENTENCE APPEAL - whether sentencing judge erred in assessment of objective seriousness - whether principle of totality applied - whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Craig v The King (1933) 49 CLR 429
GAR v R (No 1) [2010] NSWCCA 163
Gonzales v R (2007) 178 A Crim R 232
Ignjatic v R (1993) 68 A Crim R 333
Johnson v R [2004] HCA 15; 205 ALR 346; 78 ALJR 616
Mickelberg v The Queen (1989) 167 CLR 259
Monteiro v R [2011] NSWCCA 113
Orchard v Spooner (1992) 28 NSWLR 114
R v Abusafiah (1991) 24 NSWLR 531
R v Abou-Chabake (2004) 149 A Crim R 417
R v Birks (1990) 19 NSWLR 677
R v Gallagher (1986) 160 CLR 392
R v Trindall [2005] NSWCCA 446
Yassien v R [2006] NSWCCA 15
SKA v The Queen [2011] HCA 13, 243 CLR 400
Yassien v R [2006] NSWCCA 15
Category: Principal judgment
Parties: Owen Salmon - Appellant
Regina - Respondent Crown
Representation: Counsel:
Appellant in person
Mr P Ingram SC - Respondent Crown
Solicitors:
Appellant in person
Mr S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2009/10943
Decision under appeal

Date of Decision:

2010-03-19 00:00:00

Before:

Ainslie-Wallace DCJ

File Number(s):

2009/10943

Judgment

HOEBEN JA:

Nature of proceedings

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 Salmon v The Queen

Details

AGLC: Salmon v The Queen [2012] NSWCCA 119
Case: [2012] NSWCCA 119
Decision Date: 04 June 2012

CaseChat Overview and Summary

Salmon, an appellant, appealed against his convictions and sentences for theft, assault, and robbery, which were determined in the Supreme Court of Queensland. The appellant, self-represented, argued that the admission of hearsay evidence, the Crown's address, directions by the trial judge, the conduct of his counsel, the revocation of his bail during the trial, and the unreasonableness of the jury verdict all contributed to a miscarriage of justice. Additionally, the appellant appealed his sentences, contending that the sentencing judge erred in the assessment of the objective seriousness, failed to apply the principle of totality, and imposed a manifestly excessive sentence. The court considered these arguments in the context of the appeal.

The legal issues that the court was required to decide included whether the hearsay evidence was wrongfully admitted, whether the Crown's address caused a miscarriage of justice, whether the trial judge's directions contributed to a miscarriage of justice, whether the appellant's counsel's conduct caused a miscarriage of justice, whether the revocation of the appellant's bail during the trial caused a miscarriage of justice, whether the jury verdict was unreasonable, whether the sentencing judge erred in the assessment of the objective seriousness, whether the principle of totality was applied, and whether the sentence was manifestly excessive. The court meticulously examined each of these issues in the context of the appellant's appeal against both his convictions and sentences.

The court concluded that while the appellant's claims regarding the admission of hearsay evidence, the Crown's address, the trial judge's directions, the conduct of his counsel, the revocation of his bail during the trial, and the reasonableness of the jury verdict were valid, they did not individually or collectively amount to a miscarriage of justice. The court found that the appellant's self-representation, although challenging, did not result in a miscarriage of justice. Regarding the sentence appeal, the court determined that the sentencing judge had not erred in the assessment of the objective seriousness, had applied the principle of totality, and had not imposed a manifestly excessive sentence. Therefore, the appeal against both the convictions and sentences was dismissed.

The court ordered that the convictions and sentences determined by the Supreme Court of Queensland be upheld. The appellant's appeal against both his convictions and sentences was dismissed in their entirety, and no further appeal would lie in respect of the convictions or sentences.

Orders