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Sorgenfrie, Peter David v The Queen

Sorgenfrie, Peter David v The Queen

Case [1981] FCA 22 19 March 1981

Evidence Law

Admissibility of Evidence

Judicial Review

Sentencing

Criminal Law

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Re: PETER DAVID SORGENFRIE
And: THE QUEEN (1981) 51 FLR 127
No. ACT G25 of 1980
Criminal Law - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Smithers(2) and Fisher(1) JJ.

CATCHWORDS

Criminal law - evidence - unsworn statement by accused - probative value - inadequacy of direction to the jury - previous inconsistent statements of witnesses - whether judge should direct as to credibility of such witnesses. Jury - judge's discretion not to discharge. Sentence - exercise of discretion.

Australian Capital Territory Evidence Ordinance, s.74.

Criminal Law - Directions to jury - Unsworn statement - Whether it has probative value - Previous inconsistent statement by witness - No flat contradiction - Whether jury to be warned - Misdirection of jury - Whether new trial warranted - Evidence Ordinance 1971 (A.C.T.), s. 74 - Crimes Act, 1900 (N.S.W.), s. 405.

Evidence - Criminal law - Directions to jury - Unsworn statement - Whether it has probative value - Previous inconsistent statement by witness - No flat contradiction - Whether jury to be warned - Misdirection of jury - Whether new trial warranted - Evidence Ordinance 1971 (A.C.T.), s. 74 - Crimes Act, 1900 (N.S.W.), s. 405.

HEADNOTE

Held: Per curiam - (1) There was a misdirection in law in that the trial judge had failed to impress upon the jury that the unsworn statement of the appellant did have probative value, if believed.

Driscoll v. The Queen (1977), 137 CLR 517; Cranssen v. The King (1936), 55 CLR 509; Peacock v. The King (1911), 13 CLR 619; Howe v. The Queen (1980), 55 ALJR 5 applied.

(2) But as the jury must have returned the verdict of guilty if the misdirection had not occurred the appeal against conviction should be dismissed.

Simic v. The Queen (1980), 54 ALJR 406, applied.

(3) Appeal against sentence allowed.

HEARING

Sydney, 1980, December 16-17; 1981, March 19. #DATE 19:3:1981

The appellant was convicted in the Supreme Court of the Australian Capital Territory on a charge of assault occasioning actual bodily harm. He appealed to the Full Court of the Federal Court of Australia against the verdict of the jury, his conviction and the sentence.

C. S. Leahy, for the appellant.

J. R. Pritchard, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Livingston Cleary & Co.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

1. The appeal against conviction be dismissed.

2. The appeal against sentence be allowed.

3. The sentence be reduced to two years' imprisonment with hard labour with a non-parole period of one year.

JUDGE1

The appellant was charged on indictment before the Supreme Court of the Australian Capital Territory on a count of assaulting William Van Veen ("Van Veen") thereby occasioning him actual bodily harm. After a trial before a judge and jury the appellant was convicted on this count and sentenced to imprisonment for three years with a non-parole…

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 Sorgenfrie, Peter David v The Queen

Details

AGLC: Sorgenfrie, Peter David v. The Queen [1981] FCA 22 ((1981) 51 FLR 127)
Case: [1981] FCA 22
Decision Date: 19 MARCH 1981

CaseChat Overview and Summary

The case of Sorgenfrie, Peter David v The Queen involved an appeal against both conviction and sentence. The respondent, Peter David Sorgenfrie, contested his conviction for several criminal charges and the severity of his sentence. The High Court of Australia was tasked with examining the legal sufficiency of the directions given by the trial judge to the jury, particularly concerning the handling of the accused's unsworn statement and the credibility of witness testimonies that were inconsistent with their earlier statements.

The central legal issues revolved around whether the trial judge had adequately directed the jury regarding the probative value of the accused's unsworn statement and the weight to be given to previous inconsistent statements made by witnesses. Additionally, the court considered whether the trial judge should have directed the jury about the credibility of witnesses with inconsistent statements and whether the judge had discretion to not discharge the jury under the circumstances presented. Furthermore, the appeal addressed the appropriateness of the sentence imposed on Sorgenfrie and the exercise of discretion in sentencing.

The court found that while the trial judge's directions to the jury were generally sufficient, there was room for improvement regarding the handling of the accused's unsworn statement and the inconsistent witness statements. Despite these issues, the court concluded that they did not materially affect the outcome of the trial. The High Court held that the judge's discretion not to discharge the jury was exercised correctly. Regarding the sentence, the court deemed the original sentence to be excessive and ordered a reduction to two years' imprisonment with hard labour, with a non-parole period of one year. The appeal against conviction was dismissed, but the appeal against sentence was allowed, leading to the revised sentencing terms.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

2. The appeal against sentence be allowed.

3. The sentence be reduced to two years' imprisonment with hard labour with a non-parole period of one year.

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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Citations

AGLC Citation

Sorgenfrie, Peter David v. The Queen [1981] FCA 22 ((1981) 51 FLR 127)

Most Recent Citation

Valentine, Donna Maria v Butcher, George & Ors [1981] FCA 33 ((1981) 51 FLR 127)

Cases citing this decision · 11 of 11 shown

White, in the matter of an election for an office in Transport Workers’ Union of Australia, Queensland Branch
[2019] FCA 2131 Para 8

…the rules was not a power granted for the impugned purpose: see 270 – 271 and the references to Short v Wellings at 87 – 88; Valentine v Butcher (1981) 51 FLR 127 at 138 – 139 and Re Penhallurick (1983) 51 ALR 589 at 595. The rationale is that the funds and resources of an organisation belong as much to one faction…
Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch
[2004] FCA 1534 Para 4

…the rules was not a power granted for the impugned purpose: see 270 – 271 and the references to Short v Wellings at 87 – 88; Valentine v Butcher (1981) 51 FLR 127 at 138 – 139 and Re Penhallurick (1983) 51 ALR 589 at 595. The rationale is that the funds and resources of an organisation belong as much to one faction…
Thomas v Hanson
[2001] FCA 539 Para 2

…which would not be available to other candidates indicates firmly against the proposition for which he contends. As long ago as Valentine v Butcher (1981) 51 FLR 127, similar sentiments were expressed. In that case, Keely J said (at 138 - 139) : “In my view the principle prohibiting the use of the resources of a reg…
Nelson v Cameron
[2000] FCA 554 Para 5

…s during the conduct of an election to offices within the organisation have been elaborated in a line of authority which includes Valentine v Butcher (1981) 51 FLR 127, Scott v Jess (1984) 3 FCR 263, Tanner v Maynes (1985) 7 FCR 432, Darroch v Tanner (1987) 16 FCR 368 and Buchanek v Jones (1989) 34 IR 102.…
Freda Bogar v George Campbell and Brian Fraser
[1995] IRCA 622

…Keely J stated the applicable principle in Valentine v Butcher (1981) 51 FLR 127 at 138-9 as follows:- “In my view the principle prohibiting the use of the resources of a registered organisation in support of one candidate is a principle that the use of such resources is not be granted to one candidate and denied to…
Gavin Mark Marshall v Garry Main, Graham Nicholson and Anthony Battle
[1995] IRCA 332

…e also Darroch v Tanner (1987) 16 FCR 368 370-372, Re Collins ex parte Hockings (1989) 167 CLR 522 at 529 per Gaudron J.; Valentine v Butcher (1981) 51 FLR 127 at 138-139 and Saddington v Oliver (1993) 48 IR 115 at 116.…
Buchanek, J. v Jones, I
[1989] FCA 776

…r failure to inform someone of the availability of a facility constitutes a denial of an opportunity, much reference was made to Valentine v. Butcher (1981) 51 FLR 127. In that case, one team in an election in a registered organisation placed a leaflet in the organisation's official journal by way of an insert. A ca…
Buchanek, J. v Jones, I
[1989] FCA 777

…In Valentine v. Butcher (1981) 51 FLR 127 at p 143 Keely J. said:…
Tanner v Maynes
[1985] FCA 629

…R 84; Holmes v. Riordan (1955) 86 CAR 180; Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330; Valentine v. Butcher (1981) 51 FLR 127; Bull v. Attorney-General for New South Wales (1913) 17 CLR 370, referred to.…
Jess, Michael Patrick v Scott, R.J
[1984] FCA 36

…(Federal Court of Australia, Sweeney J., 14 September 1979); Gordon v. Carroll (1975) 27 FLR 129 at 144-146, 152-156, 159- 160; Valentine v. Butcher (1981) 51 FLR 127 at 136-137; Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330 at 336, applied; Dugmore v. Porter (1982) 3 IR 418 a…
Valentine v Butcher
[1981] FCA 33

…e a supplement to "Blueprint", Federal Newspaper of the Association of Draughting Supervisory and Technical Employees, February 1981 and ARTHUR GREIG (1981) 51 FLR 127 No. V1 of 1981 Industrial law…

View all 11 citing cases →

Cases cited in this decision · 11 of 11 shown

Howe v The Queen
[2016] NZHC 926

…Driscoll v. The Queen (1977), 137 CLR 517; Cranssen v. The King (1936), 55 CLR 509; Peacock v. The King (1911), 13 CLR 619; Howe v. The Queen (1980), 55 ALJR 5 applied.…
R v Beard
[2015] NSWDC 399

…It may be observed that a direction to the jury that an unsworn statement is less than evidence, but more than argument which without more would leave a jury in an impossible position. The Jury would inevitably be faced with the intellectual problem of devining just what was the significance of the …
R v Jackson
[2014] SASCFC 118

…Support for this approach is to be found in the reasons of Gibbs J. in Driscoll's Case, supra, with whose reasons the other members of the Court agreed. He went to some length to deny that where a previous inconsistent statement was made "it is always necessary or even appropriate to direct a jury t…
Simic v The Queen
[1980] HCA 25

…Simic v. The Queen (1980), 54 ALJR 406, applied.…
Driscoll v The Queen
[1977] HCA 43

…Driscoll v. The Queen (1977), 137 CLR 517; Cranssen v. The King (1936), 55 CLR 509; Peacock v. The King (1911), 13 CLR 619; Howe v. The Queen (1980), 55 ALJR 5 applied.…
Pemble v The Queen
[1971] HCA 20

…"The essential question here is whether the trial judge should have perceived that an issue based on s.247 was fairly raised on the evidence. With respect, we think he should have done so. The appropriate principle is that stated by Barwick C.J. in Pemble v. The Queen (1971) 107 at pp. 117-118 as fo…
Mraz v The Queen
[1955] HCA 59

…Accordingly, the error had quite important consequences in relation to the consideration by the jury of the issues. In these circumstances the problem before this Court is whether a new trial should be ordered. It was pointed out in the unanimous judgment of the High Court in Simic v. The Queen (198…
Cranssen v the King
[1936] HCA 42

…Driscoll v. The Queen (1977), 137 CLR 517; Cranssen v. The King (1936), 55 CLR 509; Peacock v. The King (1911), 13 CLR 619; Howe v. The Queen (1980), 55 ALJR 5 applied.…
Peacock v The King
[1911] HCA 66

…Driscoll v. The Queen (1977), 137 CLR 517; Cranssen v. The King (1936), 55 CLR 509; Peacock v. The King (1911), 13 CLR 619; Howe v. The Queen (1980), 55 ALJR 5 applied.…
Cesan v The Queen
[2008] HCA 52

…Simic v. The Queen (1980), 54 ALJR 406, applied.…
Reg v Oliva
(1965) 1 WLR 1028

…Support for this approach is to be found in the reasons of Gibbs J. in Driscoll's Case, supra, with whose reasons the other members of the Court agreed. He went to some length to deny that where a previous inconsistent statement was made "it is always necessary or even appropriate to direct a jury t…

Legislation cited in this decision · 2

Evidence Ordinance 1971 (ACT)
74 2 mentions
New South Wales Crimes Act 1900 (NSW)
1 mention