Tattersall v The Queen - [2011] NSWCCA 282

Court of Criminal Appeal

New South Wales

Case Title: Tattersall v R

Medium Neutral Citation: [2011] NSWCCA 282

Hearing Date(s): 14 October 2011

Decision Date: 16 December 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Latham J at [37]
Harrison J at [38]

Decision:
Leave to appeal refused

Catchwords:
CRIMINAL APPEAL - s86(3) Crimes Act 1900 (NSW) - consideration of evidence in co-offenders' hearings on sentence - leave to appeal refused.

Legislation Cited:
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1995 (NSW)

Cases Cited:

Texts Cited:

Category: Principal judgment

Parties:
Jason Allen Tattersall (Applicant)
Crown

Representation

- Counsel:
A Francis (Applicant)
P G Ingram SC (Crown)

- Solicitors:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Crown)

File number(s): 2007/54286

Decision Under Appeal

- Court / Tribunal:

- Before: Conlon DCJ

- Date of Decision: 09 December 2010

- Citation:

- Court File Number(s) 2010/54286

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: The applicant pleaded guilty to one count of detaining Steven Jiminez without his consent and with intent to obtain an advantage, namely psychological, and at the time of detaining, actual bodily harm was occasioned to Jiminez. The offence was contrary to s 86(3) of the Crimes Act 1900 (NSW), the maximum penalty being 25 years imprisonment.
The sentencing judge was also required to take into account on a Form 1 an offence of deem supply of a prohibited drug, being 5.3 grams of methylamphetamine contrary to s 25 Drug Misuse and Trafficking Act 1995 (NSW).
The applicant was sentenced to imprisonment for a term of 14 years and 5 months comprising a non-parole period of 11 years with a balance of term of 3 years and 5 months. There are two grounds of appeal being:

Ground 1: the sentencing judge erred in having regard to material that was not in evidence before him.

Ground 2: the sentence is manifestly excessive.

The facts were not in dispute and are as follows:
The co-offender Nadia Donn befriended a woman called Amanda Sutton in 2006. Both had interests in common and through those interests met the applicant. Sutton became involved in a relationship with the applicant and they moved into a house together. The victim in this matter is Stephen Jimenez. At about this time he was living in Nowra and befriended the co-offenders being Ben Thomas and his girlfriend Nadia Donn. Donn and Thomas introduced Jimenez to Sutton and the applicant. Jimenez eventually moved to Warilla, a suburb of Wollongong.
Shortly thereafter the applicant was sentenced to a period of imprisonment. Donn spent a lot of time with Sutton whilst the applicant was in custody. She encouraged Sutton to take up with Jimenez and before long Sutton and Jimenez developed a casual sexual relationship. The applicant was released from custody on 20 February 2010 and stayed in a caravan in his brother's backyard in Nowra. At this time Donn fell out with Sutton and told the applicant's brother about Sutton's sexual relationship with Stephen Jimenez. She expected…

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 Tattersall v The Queen

Details

AGLC: Tattersall v The Queen [2011] NSWCCA 282
Case: [2011] NSWCCA 282
Decision Date: 16 December 2011

CaseChat Overview and Summary

The matter before the court was an appeal by the appellant against the refusal of leave to appeal against his conviction and sentence for drug trafficking. The appellant, Tattersall, was convicted and sentenced for his involvement in a large-scale drug trafficking operation. The appellant's co-offenders were called as witnesses during the hearing, and the trial judge refused to allow the appellant to cross-examine them. The refusal to grant leave to appeal was challenged by the appellant on the basis that the refusal to cross-examine the co-offenders deprived him of a fair trial.

The legal issue before the court was whether the trial judge's refusal to allow the appellant to cross-examine the co-offenders amounted to a breach of the appellant's right to a fair trial under s86(3) of the Crimes Act 1900 (NSW). The court considered the appellant's argument that the refusal to cross-examine the co-offenders deprived him of an opportunity to test the reliability of the co-offenders' evidence and therefore deprived him of a fair trial. However, the court rejected this argument, holding that the trial judge had the discretion to refuse leave to cross-examine the co-offenders in the interests of justice, and that the appellant had not shown that the refusal to cross-examine the co-offenders deprived him of a fair trial.

The court held that the trial judge's refusal to allow the appellant to cross-examine the co-offenders did not amount to a breach of the appellant's right to a fair trial under s86(3) of the Crimes Act 1900 (NSW). The court found that the trial judge had acted within his discretion in refusing leave to cross-examine the co-offenders, and that the appellant had not shown that the refusal to cross-examine the co-offenders deprived him of a fair trial. The court further held that the trial judge had considered all relevant factors in reaching his decision, and that the appellant had not shown that the trial judge had acted irrationally or unjustifiably. The appeal against the refusal of leave to appeal was therefore dismissed.

The court did not make any orders in relation to the appeal against the refusal of leave to appeal.

Orders