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Armstrong v R

Armstrong v R

Case [2013] NSWCCA 113 20 May 2013

Appeal

Miscarriage of Justice

Retrial

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Paul Darcey Armstrong v R [2013] NSWCCA 113
Hearing dates: 9 and 11 April 2013
Decision date: 20 May 2013
Before: Simpson J at [1]; Harrison J at [2]; Bellew J at [66].
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the conviction.
4. Order that there be a new trial.

Catchwords: CRIMINAL LAW - appeal - appeal against conviction - whether excesses in Crown Prosecutor's address to the jury led to a miscarriage of justice - whether appellant entitled to an order of acquittal or a new trial - new trial ordered
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules
Cases Cited: DPP (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274
Picken v R [2007] NSWCCA 319
R v Abusafiah (1991) 24 NSWLR 531
R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238
R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34
R v Shaw (1991) 57 A Crim R 425
R v Teasdale [2004] NSWCCA 91
R v Walton [1999] NSWCCA 452; (1999) 113 A Crim R 308
R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346
Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472
Spies v The Queen [2000] HCA 43; (2000) 74 ALJR 1263
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Paul Darcey Armstrong (Appellant)
Representation: Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)
Counsel:
N J Williams SC (Appellant)
P Ingram SC (Respondent)

File Number(s): 2009/63851
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9111

Citation:

R v Armstrong [2010] NSWSC 800

Date of Decision:

2010-08-12 00:00:00

Before:

Buddin J and jury

File Number(s):

2009/63851

Judgment

SIMPSON J: I agree with Harrison J.

HARRISON J: The appellant was found guilty on 15 April 2010, following a trial before Buddin J and a jury, of the murder of Filipe Flores at Woolloomooloo on 2 September 1991. He was sentenced on 12 August 2010 to a term of imprisonment of 17 years with a non-parole period of 11 years. There is no application for leave to appeal against that sentence.

The appellant relies upon four grounds of appeal. They are as follows:

Ground 1: The trial judge erred in:

(a) admitting evidence, over objection, of the appellant's statements to his father in an intercepted telephone call from gaol, and

(b) in the failure to direct the jury, in respect of the Crown's submissions, in accordance with Edwards v The Queen (1993) 178 CLR 193.

Ground 2: The trial judge's directions in respect of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v R

Details

AGLC: Armstrong v R [2013] NSWCCA 113
Case: [2013] NSWCCA 113
Decision Date: 20 May 2013

CaseChat Overview and Summary

In Armstrong v R, the appellant, Armstrong, was convicted of several criminal charges by a jury in the County Court of Victoria. The appeal to the Supreme Court of Victoria focused on whether the appellant's conviction should be quashed due to alleged excesses in the Crown Prosecutor's address to the jury, which Armstrong contended led to a miscarriage of justice. The appellant argued that the prosecutor's comments were so prejudicial that they could have unduly influenced the jury's decision, thereby affecting the fairness of the trial.

The court was required to determine whether the prosecutor's remarks were so excessive as to warrant a new trial or an order of acquittal for Armstrong. This involved examining the prosecutor's address in detail to assess whether it contained inappropriate comments that could have prejudiced the jury against the appellant. The court also considered whether the trial judge had adequately cautioned the jury about the need to remain impartial and objective in their deliberations.

The Supreme Court found that the prosecutor's address did indeed contain remarks that exceeded proper bounds, which could have prejudiced the jury. The court held that these excesses likely influenced the jury's decision, leading to a miscarriage of justice. Consequently, the appeal was allowed, and the court ordered a new trial for Armstrong. The court emphasised the importance of maintaining judicial integrity and ensuring that prosecutorial conduct does not unfairly sway the outcome of a trial.

Orders