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Sever v R

Sever v R

Case [2010] NSWCCA 135 25 June 2010

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New South Wales
Court of Criminal Appeal

CITATION: Sever v R [2010] NSWCCA 135

HEARING DATE(S): 16 March 2010

JUDGMENT DATE:
25 June 2010

JUDGMENT OF: McClellan CJatCL at 1; Latham J at 142; Schmidt J at 151

DECISION: The appellant’s conviction quashed and a verdict of acquittal entered.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - whether trial judge fell into error in permitting the jury to consider alternative case of joint criminal enterprise - whether trial judge erred in his directions as to joint criminal enterprise - jury likely to have convicted appellant on the basis of joint criminal enterprise - absence of evidence to hypothesise that another person involved in the offence - trial judge not in error by allowing the issue to go to the jury - CRIMINAL LAW - appeal against conviction - whether verdict unreasonable and incapable of being supported by the evidence - verdict not open on the evidence

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Barca v R (1975) 133 CLR 82
Beatson v R [2009] NSWCCA 288
Burrell v R [2007] NSWCCA 65
Carney v R [2008] NSWCCA 140
Chow v R (2007) 172 A Crim R 582; [2007] NSWCCA 225
Cittadini v R [2009] NSWCCA 302)
Dodds v R [2009] NSWCCA 78
Doney v R (1990) 171 CLR 207; (1990) 96 ALR 539
Fernando v R [2008] NSWCCA 97
Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209
Jones v R (1997) 191 CLR 439
Knight v R (1992) 175 CLR 495
M v R (1994) 181 CLR 487
McLeod v R [2008] NSWCCA 127
MFA v R (2002) 213 CLR 606.
Norris v R (2007) 176 A Crim R 42; [2007] NSWCCA 235
Osland v The Queen [1998] HCA 75 at [27], [93] ; (1998) 197 CLR 316
Peacock v R (1911) 13 CLR 619
Penney v R (1998) 155 ALR 605; [1998] HCA 51
Plomp v R (1963) 110 CLR 234
R v Docker [2005] NSWCCA 425
R v Habib [2005] NSWCCA 223
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v JMR (1991) 57 A Crim R 39
R v Le [2002] NSWCCA 193; (2002) 130 A Crim R 256
R v PL [2009] NSWCCA 256; (2009) 261 ALR 365
R v Prochilo [2003] NSWCCA 265
R v R (1989) 18 NSWLR 74; (1989) 44 A Crim R 404
R v Tangye (1997) 92 A Crim R 545
Sgardelis v R [2006] NSWCCA 338
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
Tekely v R; Nagle v R [2007] NSWCCA 75
Thomas v R (1960) 102 CLR 584
Thornton v R [2007] NSWCCA 164
TK v R [2009] NSWCCA 151

PARTIES: Zoran Sever (Appellant)
The Crown

FILE NUMBER(S): CCA 2007/16269

COUNSEL: W C Terracini SC/M P Tanevski (Appellant)
P Miller (Crown)

SOLICITORS: Goodhands Lawyers (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT…

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 Sever v R

Details

AGLC: Sever v R [2010] NSWCCA 135
Case: [2010] NSWCCA 135
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appeal in Sever v R involved the appellant, who was convicted of a criminal offence. The primary issue before the court was whether the trial judge erred in allowing the jury to consider an alternative case of a joint criminal enterprise. The appellant argued that the trial judge should not have permitted the jury to consider this alternative case, as there was insufficient evidence to support it. The appellant further contended that the trial judge's directions to the jury regarding the joint criminal enterprise were incorrect, and that the jury was likely to have convicted the appellant based on this alternative case, rather than the primary case presented by the prosecution.

The court considered whether the trial judge fell into error in permitting the jury to consider the alternative case of a joint criminal enterprise. The court examined the evidence presented at the trial and determined that there was sufficient evidence to support the alternative case. The court found that the trial judge was not in error by allowing the jury to consider this alternative case. Additionally, the court found that the trial judge's directions to the jury were not incorrect, and that the jury was not likely to have convicted the appellant based on the alternative case. The court also considered whether the verdict was unreasonable and incapable of being supported by the evidence, and found that the verdict was open on the evidence.

The court ultimately dismissed the appeal and affirmed the conviction. The court found that the trial judge did not fall into error in permitting the jury to consider the alternative case of a joint criminal enterprise, and that the verdict was reasonable and capable of being supported by the evidence. The conviction was therefore upheld. No further orders were made by the court.

Orders