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”
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 COURTJUDICIAL 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…
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.
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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.