Sanchez v R

Case [2009] NSWCCA 171


Reported Decision: 196 A Crim R 472

New South Wales


Court of Criminal Appeal

CITATION: Sanchez v R [2009] NSWCCA 171
HEARING DATE(S): 2 June 2009
 
JUDGMENT DATE: 

2 July 2009
JUDGMENT OF: Campbell JA at 1; Latham J at 87; Harrison J at 88
DECISION: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – evidence – confessions and admissions – right of silence – right at general law and under section 89 Evidence Act – whether trial judge’s direction to the jury infringed the accused’s right of silence – distinction between common law right of silence and section 89 Evidence Act - CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – particular grounds – misdirection and non-direction – general matters – failure to take objection to misdirection infringing the accused’s right of silence – operation of rule 4 Criminal Appeal Rules – whether misdirection as to the right of silence is a fundamental error leading to a miscarriage of justice - WORDS AND PHRASES – “right of silence” – “right to silence”
LEGISLATION CITED: Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995 (Cth)
CATEGORY: Principal judgment
CASES CITED: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Glennon v The Queen (1994) 179 CLR 1
Jones v R [2005] NSWCCA 443
Keung, Bow, Liu v The Queen [2008] NSWCCA 193
Petty v The Queen (1991) 173 CLR 95
Picken v The Queen [2007] NSWCCA 319
R v Button [2002] NSWCCA 159; (2002) 54 NSWLR 455; (2002) 129 A Crim R 242
R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
R v Matthews (NSWCCA, 28 May 1996, unreported)
R v Reeves (1992) 29 NSWLR 109
Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Wilde v The Queen (1988) 164 CLR 365
PARTIES: Carlos Alberto Sanchez aka Carlos Alberto Sanchez-Cardona (Appellant)
Regina (Respondent)
FILE NUMBER(S): CCA 2007/3555
COUNSEL: M Johnston (Appellant)
WJ Abraham QC (The Crown)
SOLICITORS: Legal Aid Commission NSW (Appellant)
Commonwealth DPP (The Crown)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 07/11/0246
LOWER COURT JUDICIAL OFFICER: McGuire A-DCJ
LOWER COURT DATE OF DECISION: 27/7/07




                          CCA 2007/3555

                          CAMPBELL JA
                          LATHAM J
                          HARRISON J

                          2 JULY 2009
Carlos Alberto SANCHEZ aka Carlos Alberto SANCHEZ-CARDONA v Regina
Judgment

:


      Nature of the Appeal

2 The Appellant has been convicted in the District Court of New South Wales on a charge of importing a commercial quantity of a border-controlled drug, namely cocaine. There was no dispute at the trial that the Appellant had arrived at Sydney Airport on 19 October 2006 on a flight from Argentina, and that a quantity of cocaine, estimated to be 2.369 kgs, was found concealed in his luggage. The issue at the trial concerned whether he had knowledge of the presence of the cocaine or was reckless as to its presence.

3 The…

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AGLC
Sanchez v R [2009] NSWCCA 171
Case
[2009] NSWCCA 171
Decision Date

CaseChat Overview and Summary

Sanchez appealed against his conviction for murder, challenging the trial judge's direction to the jury regarding the accused's right of silence. The trial had concluded with a jury finding Sanchez guilty of the murder of his partner, and he was sentenced to life imprisonment. The High Court of Australia was asked to consider whether the trial judge's direction to the jury regarding the accused's right of silence constituted a misdirection, and whether such a misdirection was a fundamental error leading to a miscarriage of justice.

The court needed to decide whether the trial judge's direction to the jury about the accused's right of silence constituted a misdirection that was fundamental and led to a miscarriage of justice. Additionally, the court had to determine the distinction between the common law right of silence and the right to silence as provided for under section 89 of the Evidence Act. The court also needed to consider the operation of rule 4 of the Criminal Appeal Rules and whether the failure to object to the misdirection was a fundamental error.

The court found that the trial judge's direction to the jury did not constitute a misdirection as it did not infringe on the accused's right of silence. The court distinguished between the common law right of silence and the right to silence under section 89 of the Evidence Act, holding that the direction was a correct statement of the law. The court also held that the failure to object to the misdirection did not constitute a fundamental error under rule 4 of the Criminal Appeal Rules. The appeal was dismissed, and the conviction and sentence were upheld.

No additional orders were made by the court beyond the dismissal of the appeal and the upholding of the conviction and sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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