Rend v Regina [2006] NSWCCA 41

Rend v Regina [2006] NSWCCA 41

The Crown prosecutor did not rely on the appellant's alleged lies as evidence of consciousness of guilt, so Edwards directions were not required, and the absence of a Zoneff direction caused no miscarriage. The trial judge erred in permitting Constable Pemberton to give reply evidence because the relevance of the appellant's intoxication could reasonably have been foreseen, but the proviso applied because the properly admitted evidence overwhelmingly proved the appellant's guilt and no substantial miscarriage of justice occurred. The sentence was affected by error because prior convictions and commission in company were wrongly treated as aggravating factors and the sentence lacked due...

Jurisdiction
Australia
Judgment Date
14 March 2006
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From the District Court
Outcome
Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed. Appellant re-sentenced.
Legal Topics
['robbery' 'lies and Consciousness of Guilt' 'jury Directions' 'crown Evidence in Reply' 'proviso' 'prior Convictions as Aggravating Factors' 'robbery in Company' 'parity With Co Offender Sentence' 'manifest Excess']
['criminal Law' 'criminal Procedure' 'evidence' 'sentencing'] ['robbery' 'lies and Consciousness of Guilt' 'jury Directions' 'crown Evidence in Reply' 'proviso' 'prior Convictions as Aggravating Factors' 'robbery in Company' 'parity With Co Offender Sentence' 'manifest Excess']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether a miscarriage of justice was occasioned by the Crown prosecutor's address allegedly relying on lies told by the appellant as evidence of guilt." "Whether a miscarriage of justice was occasioned by the trial judge's failure to give directions concerning lies alleged to have been told by the appellant." 'Whether the trial judge erred in allowing the Crown to call evidence of Constable Pemberton in reply.' 'Whether the sentencing judge erred by taking prior convictions into account as an aggravating factor.' 'Whether the sentencing judge erred by taking into account as an aggravating factor that the offence was committed in company.' "Whether disparity between the appellant's sentence and Wormleaton's sentence gave rise to a justifiable sense of grievance."]

Ratio Decidendi

The Crown prosecutor did not rely on the appellant's alleged lies as evidence of consciousness of guilt, so Edwards directions were not required, and the absence of a Zoneff direction caused no miscarriage. The trial judge erred in permitting Constable Pemberton to give reply evidence because the relevance of the appellant's intoxication could reasonably have been foreseen, but the proviso applied because the properly admitted evidence overwhelmingly proved the appellant's guilt and no substantial miscarriage of justice occurred. The sentence was affected by error because prior convictions and commission in company were wrongly treated as aggravating factors and the sentence lacked due...

Court Disposition

Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed. Appellant re-sentenced.

Orders

  • ['Appeal against conviction dismissed.' 'Leave to appeal against sentence granted.' 'Appeal against sentence allowed.' 'Sentence imposed on 7 April 2005 for the offence of robbery quashed. In lieu thereof the appellant should be sentenced to a non-parole period of one year six months with a balance of term of one...