Thompson v R [2023] NSWCCA 244

Procedural Posture

Criminal Appeal Against Conviction and Sentence / Application for Extension of Time and Leave to Appeal Against Conviction and Sentence From the District Court of New South Wales

Legal Issues

1. 1 ["Whether a miscarriage of justice occurred as a result of asserted incompetence of the applicant's solicitor and barristers at and before trial." "Whether the trial judge's directions on conspiracy were inadequate or prevented separate consideration of the applicant's defence case." 'Whether the applicant may have been convicted of a conspiracy different from that charged in the indictment.' "Whether evidence of the applicant's prior 2001 drug importation conviction was admissible as tendency evidence." 'Whether the Crown cross-examined the applicant using coincidence reasoning without a coincidence notice.' "Whether the trial judge fairly directed the jury as to the nature of the applicant's defence." 'Whether the trial judge failed to identify potentially prejudicial evidence not admissible against the applicant.' "Whether the trial judge erred in declining to discharge the jury after draft written submissions concerning exclusion of a co-accused's record of interview were inadvertently provided to the jury foreperson." 'Whether the trial judge erred in declining to discharge the jury following the closing address of counsel for co-accused Mr Majdalawi.' "Whether the sentencing judge's finding that the applicant was a principal was open on the evidence." 'Whether the sentencing judge erred by treating the weight of the drug as the primary sentencing consideration.' "Whether the sentencing judge used the applicant's prior criminal record to determine objective seriousness." 'Whether the sentence of life imprisonment with a non-parole period of 22 years was manifestly excessive.']

Ratio Decidendi

The Court held that none of the applicant's conviction grounds established error or miscarriage of justice: the challenged conduct of representatives was either explained, a rational forensic choice, or not shown to have affected the trial; the jury directions required proof of the one continuing conspiracy charged and allowed for the applicant's separate-conspiracy defence; the 2001 importation conviction was admissible as tendency evidence and its probative value substantially outweighed prejudice with directions; the challenged cross-examination tested credibility rather than using coincidence reasoning; and the jury discharge applications were properly refused. On sentence, the...

Court Disposition

Leave to appeal against conviction and sentence granted, but both appeals dismissed; time for filing the notice of appeal extended.

Orders

• ['Extend the time for filing the notice of appeal to 19 August 2022;' 'Grant leave to appeal against conviction;' 'Dismiss the appeal against conviction;' 'Grant leave to appeal against sentence;' 'Dismiss the appeal against sentence.']