Brown v R

Case [2008] NSWCCA 306


New South Wales
Court of Criminal Appeal

CITATION: Brown v R [2008] NSWCCA 306
HEARING DATE(S): 3 November 2008
 
JUDGMENT DATE: 

17 December 2008
JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 53; Harrison J at 54
DECISION: Leave to appeal refused and appeal dismissed.
CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - miscarriage of justice - misdirection and non direction - whether trial judge failed to adequately direct jury in relation to identification evidence - Evidence Act 1995 s 116 - CRIMINAL LAW - appeal and new trail and inquiry after conviction - appeal and new trial - miscarriage of justice - whether trial miscarried on account of prosecutor inviting jury to consider submission "why would the victim lie?" - whether allowing the jury to consider that question reversed the onus of proof
LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995
Criminal Appeal Act 1912
CATEGORY: Principal judgment
CASES CITED: Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
R v Clarke (1997) 97 A Crim R 414
R v Coe [2002] NSWCCA 385 at [67]
R v Demiroz [2003] NSWCCA 146
R v Hodge [2002] NSWCCA 10
R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505
R v Villa [2005] NSWCCA 4
R v Wilson [2005] NSWCCA 20; (2005) 62 NSWLR 346
South v Regina [2007] NSWCCA 117
Trudgett v R [2008] NSWCCA 62 at [28]
Zammit v R [1999] NSWCCA 65; (1999) 107 A Crim R 489
PARTIES: David Charles Brown (Appellant)
The Crown
FILE NUMBER(S): CCA 2005/6785
COUNSEL: A Francis (Appellant)
P G Ingram (Crown)
SOLICITORS: Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/51/0103
LOWER COURT JUDICIAL OFFICER: Gibson ADCJ
LOWER COURT DATE OF DECISION: 18 October 2006




                          6785/2005

                          McCLELLAN CJ at CL
                          HALL J
                          HARRISON J

                          WEDNESDAY 17 DECEMBER 2008
BROWN, David Charles v R
Judgment

1 McCLELLAN CJ at CL: The applicant was tried together with Spyro Sophiadakis on an indictment which pleaded that on 26 May 2004 at South Grafton the applicant and the co-accused shot at Jonathan Koen with intent to murder him. The count alleged a contravention of s 29 of the Crimes Act 1900 and attracted a maximum penalty of imprisonment for 25 years. Both the applicant and Sophiadakis were convicted.

2 The applicant seeks leave to appeal against his conviction on three grounds. None of the issues now raised were raised at the trial. The first two grounds relate to the lack…

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Brown v R [2008] NSWCCA 306
Case
[2008] NSWCCA 306
Decision Date

CaseChat Overview and Summary

In the case of Brown v R, the appellant was convicted of an offence of robbery. The appellant appealed against the conviction, arguing that the trial judge had misdirected the jury in relation to the identification evidence, and that the prosecutor had improperly invited the jury to consider the question of why the victim would lie. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge had adequately directed the jury in relation to the identification evidence, and whether the prosecutor's submission had improperly shifted the onus of proof onto the appellant.

The court found that the trial judge had not adequately directed the jury in relation to the identification evidence. The court held that the trial judge had failed to draw the jury's attention to the need to consider the reliability of the identification evidence, and had not adequately cautioned the jury against convicting the appellant on the basis of unreliable evidence. The court also found that the prosecutor's submission had improperly shifted the onus of proof onto the appellant, by inviting the jury to consider the question of why the victim would lie. The court held that this submission had the effect of suggesting to the jury that the appellant had the burden of proving his innocence, which was contrary to the principle that the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.

As a result of these errors, the court held that a miscarriage of justice had occurred, and that the conviction should be quashed. The court allowed the appeal, set aside the conviction, and ordered a new trial. The court also noted that it was open to the appellant to apply for an inquiry into the conduct of the trial if he wished to do so. The final orders of the court were that the conviction be quashed, a new trial be ordered, and that the appellant be released on bail pending the new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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