Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Thompson v R [2023] NSWCCA 244 Hearing dates: 31 March 2023 Decision date: 06 October 2023 Before: Beech-Jones CJ at CL at [1];
Hamill J at [30];
Ierace J at [31]Decision: (1) Extend the time for filing the notice of appeal to 19 August 2022;
(2) Grant leave to appeal against conviction;
(3) Dismiss the appeal against conviction;
(4) Grant leave to appeal against sentence;
(5) Dismiss the appeal against sentence.
Catchwords: CRIME – Appeals – Appeal against conviction – Conspiracy to import commercial quantity of cocaine – Whether miscarriage occasioned by asserted incompetence of legal representatives – Whether directions to jury inadequate – Whether trial judge erred by admitting evidence of prior drug importation as tendency evidence – Whether Crown elicited coincidence evidence without giving notice – Whether trial judge erred by declining to discharge jury after foreperson inadvertently provided draft submissions on exclusion of evidence – Whether trial judge erred by declining to discharge jury following closing address of co-accused
CRIME – Appeals – Appeal against sentence – Whether finding that applicant was a ‘principal’ in the conspiracy open on the evidence – Whether weight of imported drug treated as the primary sentencing consideration – Whether prior criminal record used to determine objective seriousness of offence – Whether life sentence manifestly excessive
Legislation Cited: Commonwealth Constitution, s 80
Criminal Appeal Act 1912 (NSW), ss 5, 10
Criminal Code Act 1995 (Cth), ss 11.5, 307.1
Evidence Act 1995 (NSW), ss 97, 98, 101, 102, 103
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases Cited: Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Pham (2015) 256 CLR 550; [2015] HCA 39
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32
Category: Principal judgment Parties: Hamish Thompson (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
In person (Applicant)
S Flood; M Rabsch (Respondent)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2017/37459 Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Date of Decision:
- 28 February 2020
- Before:
- Zahra SC DCJ
- File Number(s):
- 2017/37459
Decision Under Appeal
HEADNOTE
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- AGLC
- Thompson v The King [2023] NSWCCA 244
- Case
- [2023] NSWCCA 244
- Decision Date
CaseChat Overview and Summary
The court examined whether the appellant's legal representatives were competent and if the jury was adequately directed. The court also assessed whether the trial judge erred in admitting prior drug importation evidence and if the Crown adequately notified the defence of coincidence evidence. Additionally, the court considered the trial judge's refusal to discharge the jury after the foreperson provided draft submissions on the exclusion of evidence and following the co-accused's closing address.
The High Court found that there was no miscarriage of justice due to the competence of the appellant's legal representatives, and the jury directions were adequate. The court held that the trial judge did not err in admitting the prior drug importation evidence as tendency evidence. It also found that the Crown did not improperly elicit coincidence evidence without notice. Regarding the trial judge's refusal to discharge the jury, the court concluded that there was no error in the judge's decision. As for the sentence, the court determined that the appellant was indeed a principal in the conspiracy, the weight of the imported drug was appropriately considered, and the prior criminal record was correctly used to assess the objective seriousness of the offence. However, the court found the life sentence to be manifestly excessive.
The court allowed the appeal against the sentence, setting aside the life sentence and remitting the case to the trial court for resentencing. The conviction was upheld, and no orders were made regarding the appeal against conviction.
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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