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Thompson v The King

Thompson v The King

Case [2023] NSWCCA 244 6 October 2023

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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:
Fantakis v R [2023] NSWCCA 3
Geraghty v R [2023] NSWCCA 47
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 Barnard [2021] NSWDC 400
R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1
R v Gregory [2000] VSCA 212
R v Lembke [2020] NSWCCA 293
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Pham (2015) 256 CLR 550; [2015] HCA 39
Taylor v R [2020] NSWCCA 355
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32
Thompson v R [2007] NSWCCA 83
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Toller v R [2021] NSWCCA 204
Wongv The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Hamish Thompson (Applicant)
Rex (Respondent)
Representation:
Counsel:
In person (Applicant)
S Flood; M Rabsch (Respondent)
Solicitors:
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

[This headnote is not to…

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 Thompson v The King

Details

AGLC: Thompson v The King [2023] NSWCCA 244
Case: [2023] NSWCCA 244
Decision Date: 06 October 2023

CaseChat Overview and Summary

The appeal against conviction and sentence in Thompson v The King was heard by the High Court of Australia. The appellant, Thompson, was convicted of conspiracy to import a commercial quantity of cocaine. The appellant contested both the conviction and the sentence, arguing that the trial process was flawed in several respects. Issues included the competence of his legal representatives, the adequacy of jury directions, the admission of prior drug importation evidence, the Crown's handling of coincidence evidence, and the trial judge's decisions regarding jury discharge.

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