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Brown v R

Brown v R

Case [2008] NSWCCA 306 17 December 2008

Appeal

Miscarriage of Justice

Admissibility of Evidence

Criminal Law

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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…

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 v R [2008] NSWCCA 306
Case: [2008] NSWCCA 306
Decision Date: 17 December 2008

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