Brown v The Queen - [2019] NSWCCA 185

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Brown v R [2019] NSWCCA 185
Hearing dates: 22 July 2019
Date of orders: 12 August 2019
Decision date: 12 August 2019
Before: Basten JA at [1];
Johnson J at [2];
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – joint criminal enterprise – two counts of firing a firearm in a public place – jury trial – verdict of not guilty on first shooting but verdict of guilty on second shooting – circumstantial case – whether verdicts inconsistent – whether verdict of guilty open to the jury – intermediate fact of knowledge that the co-offender possessed a firearm – an issue in the first shooting but not the second – whether other reasonable possibilities inconsistent with guilt
Legislation Cited: Crimes Act 1900 (NSW) ss 93G, 154A, 195
Cases Cited: AH v R [2019] NSWCCA 152
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Libke v R (2007) 230 CLR 559; [2007] HCA 30
Sio v R [2015] NSWCCA 42
The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35
Category: Principal judgment
Parties: Tylan Brown (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr K Averre (Applicant)
Mr D Patch (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/39674
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 February 2018

Before:

Haesler SC DCJ

File Number(s):

2017/39674

Judgment

BASTEN JA: I agree with Price J.
JOHNSON J: I agree with the reasons of Price J and his Honour’s proposed orders. Having considered the record of the trial, it was clearly open to the jury to be satisfied of the guilt of the applicant on count 2.
PRICE J: The applicant, Tylan Brown, was arraigned on an indictment containing the following four counts:

That on 3 February 2017, at or near Dapto, he did allow himself to be carried in a motor vehicle, knowing that it was taken without the consent of the owner, contrary to s 154A(1)(b) of the Crimes Act 1900 (NSW).

That on 3 February 2017, he did fire a .22 calibre firearm in a public place, namely Wyndarra Way, Koonawarra, contrary to s 93G(1)(b) of the Crimes Act.

That on 3 February 2017, he did fire a .22 calibre firearm in a public place, namely Dale Street, Penrose, contrary to s 93G(1)(b) of the Crimes Act.

That on 3 February 2017, at Calderwood, he did intentionally destroy by means of fire, a Toyota Prado, contrary to s 195(1)(b) of the Crimes Act.

A jury trial commenced on 20 February 2018 before Haesler SC DCJ (“the trial judge”) in the District Court. On 27 February 2018, the jury returned verdicts of guilty for counts 1 and 2 but acquitted the applicant of counts 3 and 4. On 18 May 2018, the trial…

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 The Queen

Details

AGLC: Brown v The Queen [2019] NSWCCA 185
Case: [2019] NSWCCA 185
Decision Date: 12 August 2019

CaseChat Overview and Summary

In the High Court of Australia, the case of Brown v The Queen involved an appeal against a conviction for two counts of firing a firearm in a public place. The appellant was charged with the offences and faced a jury trial. The jury returned a verdict of not guilty on the first count of firing a firearm but found the appellant guilty on the second count. The nature of the appeal centred around the inconsistency of the verdicts and whether the jury could have reasonably concluded that the appellant was guilty of the second offence.

The primary legal issue before the court was whether the verdicts of not guilty and guilty on the two separate counts were inconsistent. The court was also required to determine if the jury's verdict of guilty on the second count was open to them, given the evidence presented. A further issue was whether the intermediate fact of the appellant's knowledge that a co-offender possessed a firearm was an issue in the first shooting but not the second, and whether this impacted the consistency of the verdicts. The court examined the evidence and the reasoning that could have led the jury to their conclusions.

The court held that the verdicts were not necessarily inconsistent, as the jury could have found that the appellant had knowledge of the firearm in the first instance but lacked such knowledge in the second instance. The court found that the jury's verdict of guilty on the second count was open to them, based on the evidence and the reasonable possibilities that were consistent with guilt. The court concluded that the jury's verdicts were not inconsistent and upheld the conviction on the second count.

The final orders of the court were to dismiss the appeal and affirm the conviction on the second count of firing a firearm in a public place. The court found that the jury's verdicts were consistent and that the conviction was supported by the evidence presented. The court did not interfere with the jury's assessment of the facts and the reasonable possibilities that led to their conclusions.

Orders