R v Jerry Royston Maloney [2004] NSWCCA 250

New South Wales Court of Criminal Appeal

CITATION : R v Jerry Royston Maloney [2004] NSWCCA 250 HEARING DATE(S) : 26/07/04 JUDGMENT DATE : 28 July 2004

JUDGMENT OF : Spigelman CJ at 1; Hidden J at 2; Buddin J at 3 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence be granted but that appeal dismissed.

CATCHWORDS : Appeal against conviction - attempt to obtain possession of prohibited import - verdict unreasonable - Crown Prosecutor's address - application for leave to appeal against sentence. CASES CITED : Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 PARTIES : Regina Jerry Royston Maloney FILE NUMBER(S) : CCA 60410/03 COUNSEL : Ms M Cinque (Respondent) D Brezniak (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Respondent) McGowan Lawyers (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0435 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60410/03

SPIGELMAN CJ HIDDEN J BUDDIN J

WEDNESDAY 28 JULY 2004 REGINA v JERRY ROYSTON MALONEY Judgment

1 SPIGELMAN CJ: I agree with Buddin J. 2 HIDDEN J: I agree with Buddin J. 3 BUDDIN J: The appellant was convicted of attempting to obtain possession of a prohibited import, being not less than the trafficable quantity applicable to cocaine, which had been imported into Australia. He was sentenced by Judge Hock to a term of 8 years' imprisonment, with a non-parole period of 5 years. He appeals against his conviction and seeks leave to appeal against his sentence. He has filed the following Grounds of Appeal: 1. Her Honour, the trial Judge, did not sufficiently warn the jury as to the dangers of convicting the Appellant upon the evidence at trial 2. Her Honour, the trial Judge, did not sufficiently put the case for the defence in her summing up to the jury 3. The verdict of the jury is, in the circumstances of the trial of the Appellant, a miscarriage of justice as being a verdict which cannot be supported having regard to the evidence at the trial and which is a verdict which is unreasonable 4. In regard to the evidence concerning fingerprints the change in the prosecution case, after the close of the case for the defence, gave rise to a miscarriage of justice 5. In regard to the evidence concerning fingerprints Her Honour, the trial judge, erred in her direction to the Jury, at page 278 of the trial transcript, in that she failed sufficiently to direct the jury as to the effect of the absence of any evidence identifying the fingerprints of the Appellant with the envelope containing drugs 6. Her Honour, the trial judge, erred in her summing up to the Jury in that she failed to direct the jury to disregard the unfairly prejudicial material in the closing address of the Crown Prosecutor.