Oliveri v R [2011] NSWCCA 38

Oliveri v R [2011] NSWCCA 38

The appeal against conviction failed because the Crown case against the appellant was strong, the verdict was open on the evidence, no Shepherd direction was required, the absence of a s 165 warning or Edwards direction did not cause a miscarriage of justice, and the other complaints about the trial did not establish unfairness or prejudice. Leave to appeal against sentence was granted but the sentence appeal failed because the appellant's role as an intermediary in receiving and transporting the drugs supported the sentence imposed, there was no material difference in objective criminality from Duc Phan requiring a lesser sentence, and no lesser sentence was warranted in law.

Jurisdiction
Australia
Judgment Date
10 March 2011
Procedural Posture
Criminal Appeal Against Conviction and Sentence / Court of Criminal Appeal Decision
Outcome
Appeal against conviction dismissed. Leave to appeal against sentence granted but appeal against sentence dismissed.
Legal Topics
['knowingly Taking Part in Supply of Commercial Quantity of Pseudoephedrine' 'unreasonable Verdict' 'shepherd Direction' 'section 165 Evidence Act Warning' 'edwards Direction on Lies' 'proportionality in Sentencing' 'parity With Co Offender']
['criminal Law' 'evidence' 'sentencing'] ['knowingly Taking Part in Supply of Commercial Quantity of Pseudoephedrine' 'unreasonable Verdict' 'shepherd Direction' 'section 165 Evidence Act Warning' 'edwards Direction on Lies' 'proportionality in Sentencing' 'parity With Co Offender']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence / Court of Criminal Appeal Decision

Legal Issues

  1. 1 ['Whether the jury verdict was unreasonable.' 'Whether the trial miscarried because a Shepherd direction was not given.' 'Whether the trial miscarried because no warning was given about the evidence of co-accused Duc Hien Phan.' 'Whether the trial miscarried because no Edwards direction was given concerning alleged lies.' "Whether prosecutorial conduct, defence counsel conduct, jury materials, or the trial judge's response to a jury question caused a miscarriage of justice." 'Whether the sentence was disproportionate, treated the appellant as equal in objective criminality with Duc Hien Phan, wrongly elevated objective criminality, or was manifestly excessive.']

Ratio Decidendi

The appeal against conviction failed because the Crown case against the appellant was strong, the verdict was open on the evidence, no Shepherd direction was required, the absence of a s 165 warning or Edwards direction did not cause a miscarriage of justice, and the other complaints about the trial did not establish unfairness or prejudice. Leave to appeal against sentence was granted but the sentence appeal failed because the appellant's role as an intermediary in receiving and transporting the drugs supported the sentence imposed, there was no material difference in objective criminality from Duc Phan requiring a lesser sentence, and no lesser sentence was warranted in law.

Court Disposition

Appeal against conviction dismissed. Leave to appeal against sentence granted but appeal against sentence dismissed.

Orders

  • ['Appeal against conviction dismissed.' 'Grant leave to appeal against sentence but dismiss that appeal.']