SALMON v R [2012] NSWCCA 119

SALMON v R [2012] NSWCCA 119

The conviction appeal was dismissed because, although two Crown submissions alleging lies and the reading of some police statements were erroneous, those matters did not occasion a miscarriage of justice; most challenged directions, evidentiary rulings and counsel decisions disclosed no appealable error; the proposed additional evidence was largely not fresh, relevant or cogent; and the Court was independently satisfied beyond reasonable doubt that the appellant was guilty of larceny, assault and robbery. The sentence appeal was allowed because the three offences formed a single episode of criminality and the sentencing judge failed adequately to apply totality by accumulating sentences;...

Jurisdiction
Australia
Judgment Date
04 June 2012
Procedural Posture
Criminal Conviction Appeal and Application for Leave to Appeal Against Sentence / Appeal From Sydney District Court Convictions and Sentences Imposed by Ainslie Wallace DCJ on 19 March 2010
Outcome
Conviction appeal dismissed. Leave to appeal against sentence granted, sentence appeal allowed, original sentences quashed and lesser concurrent fixed terms imposed.
Legal Topics
['larceny' 'assault' 'robbery' 'claim of Right' 'hearsay Evidence' 'crown Address' 'jury Directions' 'fresh Evidence on Appeal' 'conduct of Trial Counsel' 'revocation of Bail During Trial' 'unreasonable Verdict' 'totality Principle' 'manifest Excess']
['criminal Law' 'evidence' 'sentencing' 'criminal Procedure'] ['larceny' 'assault' 'robbery' 'claim of Right' 'hearsay Evidence' 'crown Address' 'jury Directions' 'fresh Evidence on Appeal' 'conduct of Trial Counsel' 'revocation of Bail During Trial' 'unreasonable Verdict' 'totality Principle' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Conviction Appeal and Application for Leave to Appeal Against Sentence / Appeal From Sydney District Court Convictions and Sentences Imposed by Ainslie Wallace DCJ on 19 March 2010

Legal Issues

  1. 1 ['Whether hearsay evidence about the returned laptop was wrongly admitted and caused a miscarriage of justice.' "Whether the Crown advocate's submissions that the appellant had lied caused the trial to miscarry." 'Whether the trial judge failed to give proper directions on spent convictions, claim of right, assault, robbery, larceny, demeanour, corporations law or other alleged live issues.' 'Whether police statements were wrongly read in breach of s33 of the Evidence Act 1995 and, if so, whether any error mattered.' "Whether prejudicial references to the complainant's pregnancy caused a miscarriage of justice." 'Whether fresh or additional evidence should be admitted on the conviction appeal.' 'Whether the verdicts were unreasonable or unsupported by the evidence.' 'Whether alleged failures by defence solicitor and counsel caused a miscarriage of justice.' 'Whether revocation of bail during trial caused a miscarriage of justice.' 'Whether the sentencing judge erred in relation to the Local Court maximum, objective seriousness, totality, protective custody, factual matters or manifest excess.']

Ratio Decidendi

The conviction appeal was dismissed because, although two Crown submissions alleging lies and the reading of some police statements were erroneous, those matters did not occasion a miscarriage of justice; most challenged directions, evidentiary rulings and counsel decisions disclosed no appealable error; the proposed additional evidence was largely not fresh, relevant or cogent; and the Court was independently satisfied beyond reasonable doubt that the appellant was guilty of larceny, assault and robbery. The sentence appeal was allowed because the three offences formed a single episode of criminality and the sentencing judge failed adequately to apply totality by accumulating sentences;...

Court Disposition

Conviction appeal dismissed. Leave to appeal against sentence granted, sentence appeal allowed, original sentences quashed and lesser concurrent fixed terms imposed.

Orders

  • ['Conviction Appeal: Appeal dismissed.' 'Sentence Appeal: Leave to appeal is granted.' 'The appeal is allowed.' 'The sentences imposed by her Honour on 19 March 2010 are quashed.' 'On the charge of larceny, the applicant is sentenced to a fixed term of imprisonment of 1 month to commence 14 December 2009 and to...