Brown v R - [2006] NSWCCA 69

CITATION: BROWN, BARWICK, BROWN v R [2006] NSWCCA 69

HEARING DATE(S): 31 January 2006

JUDGMENT DATE:
22 March 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 5; Rothman J at 58

DECISION: Appeal allowed; Quash the conviction the subject of the appeal and the sentence imposed by Judge English; Order that there be a new trial

PARTIES: Regina
Gregory Brian Brown
Kevin James Barwick
Neville John Brown

FILE NUMBER(S): CCA 2005/1574

COUNSEL: Crown: V Lydiard
B Brown: C Smith
K Barwick: J Stratton SC
N Brown: A Bellanto QC

SOLICITORS: Crown: S Kavanagh
B Brown: North & Bedgery
K Barwick: S O'Connor
N Brown: Patricia White & Associates

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0246

LOWER COURT JUDICIAL OFFICER: English DCJ

- 22 -

2005/1365
2005/1574
2005/1572

McCLELLAN CJ AT CL
HULME J
ROTHMAN J

Wednesday, 22 March 2006

Neville John BROWN v R

Kevin James BARWICK v R

Gregory Brian BROWN v R

Judgment

1 McCLELLAN CJ AT CL I have read the reasons for judgment of Hulme J in draft and agree with them.

2 As there must be a new trial the question will be raised again as to whether Mr Gray is relevantly “available to give evidence.” This will require consideration to be given to his competence having regard to the tests provided by s13 of the Evidence Act in light of any evidence as to Mr Gray’s mental capacity at the time of that trial.

3 The conclusion of this Court on that issue is based upon the evidence given at the trial but does not determine the conclusion which may be appropriate at the new trial.

4 I agree with the orders proposed by Hulme J.

5 HULME J: On 27 April 2004 each of the above-named Appellants pleaded not guilty to a charge that:-

“He on or about 27 June 2003 at Wellington… did maliciously inflict grievous bodily harm upon George Gray with intent to do grievous bodily harm to him”

6 On 10 May 2004 the jury found each of Messrs Brown guilty as charged. Mr Barwick was convicted of the statutory alternative of maliciously inflict grievous bodily harm.

7 On 11 February 2005 Judge English sentenced Neville Brown to imprisonment for a non-parole period of 9 years and 10 months and an overall term of imprisonment of 12 years both periods commencing on 3 January 2004. Her Honour imposed a similar sentence on Gregory Brown though commencing on 1 July 2003 and sentenced Kevin Barwick to imprisonment for a non-parole period of 1 year and 9 months and an overall term of 3 years and 6 months both of these periods commencing on 10 May 2004.

Each of Messrs Brown has appealed against both conviction and sentence. Kevin Barwick has appealed only against conviction. The grounds of appeal against conviction are:-

Neville Brown

1. Her Honour erred in admitting evidence of the representations made by George Gray (the victim) to Rhonda Peckham, Carmela Wright…

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 Brown v R

Details

AGLC: Brown, Barwick, Brown v The Queen [2006] NSWCCA 69
Case: [2006] NSWCCA 69
Decision Date: 22 March 2006

CaseChat Overview and Summary

The appeal in this matter was brought by three defendants: Neville John Brown, Kevin James Barwick, and Gregory Brian Brown. The appeal was against their conviction and sentence in the District Court on various charges related to a serious assault on George Gray. The appeal was heard by the NSW Court of Criminal Appeal. The court found in favour of the appellants, allowing their appeal, quashing their conviction and sentence, and ordering a new trial.

The appeal was based on several grounds. Firstly, the appellants argued that the trial judge had erred in admitting hearsay evidence of statements made by George Gray to Rhonda Peckham, Carmela Wright, and Shirley Gray. The appellants contended that these statements were inadmissible because the victim was available to give evidence, and therefore, the hearsay rule should have applied. The court agreed with the appellants, finding that the victim was available to give evidence and that the trial judge had erred in admitting the hearsay evidence.

Secondly, the appellants argued that the verdict of guilty was unreasonable and inconsistent with the evidence. The court found that this ground of appeal should fail, as the jury was entitled to accept the hearsay evidence as accurate, and there was other evidence supporting the jury's verdict.

Lastly, the appellants argued that the trial judge had failed to properly direct the jury on the unreliability of the hearsay evidence, as required by section 165 of the Evidence Act. The court found that this ground of appeal was made out, and the failures to properly direct the jury on the unreliability of the hearsay evidence led to a miscarriage of justice.

In conclusion, the NSW Court of Criminal Appeal allowed the appeal, quashed the conviction and sentence, and ordered a new trial for the appellants. The court found that the trial judge had erred in admitting the hearsay evidence and in failing to properly direct the jury on the unreliability of such evidence.

Orders