Legal Research
Cases
Carnaby v The Queen

Carnaby v The Queen

Case [2021] NSWCCA 275 19 November 2021

Appeal

Jurisdiction

Res Judicata

Admissibility of Evidence

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carnaby v R [2021] NSWCCA 275
Hearing dates: 3 November 2021
Decision date: 19 November 2021
Before: McCallum JA at [1]; Davies J at [2]; Adamson J at [3]
Decision:
In proceedings 2021/298644:
(1)   Application for release dismissed.
In proceedings 2016/373162:
(1)   Grant leave to appeal in respect of all grounds save for ground 4.
(2)   Refuse leave in respect of ground 4.
(3)   Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — applicant represented by competent trial counsel before withdrawing his instructions — it was open to the trial judge to refuse a further adjournment in circumstances of delays in obtaining new counsel, the length of the trial to date and the applicant’s ability to conduct the trial — it is a matter for the jury whether to accept or reject evidence of witnesses —no appeal lies against a verdict of not guilty — the obligation on the Crown to call or make available for cross-examination all relevant witnesses cannot apply to a witness who cannot be located — evidence of unsuccessful attempts to locate witnesses — applicant alleged unreasonable verdicts where inconsistencies in a witness’ evidence — no fundamental inconsistency that ought to have caused the jury reasonable doubt as to the applicant’s involvement — applicant is bound by forensic choice not to call witnesses — documents to be tendered agreed before trial counsel was dismissed — trial judge correct in not admitting evidence of a co-offender’s previous conviction where circumstances of the conviction were unknown — none of the verdicts of guilty were unsafe, unreasonable or inconsistent — it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt — transcript shows the extent to which the trial judge sought to ensure the applicant obtained a fair trial — time taken by the jury was not unreasonably short or an indication that they did other than discharge their functions appropriately
CRIME — Bail — Appeal bail — second application for release made by applicant for the purposes of preparing his appeal — appeal is to be dismissed — basis for bail being granted has fallen away — release application dismissed

Legislation Cited:
Bail Act 2013 (NSW), ss 18, 22
Crimes Act 1900 (NSW), ss 192E, 351A
Evidence Act 1995 (NSW), ss 128, 137, 191

Cases Cited:
Browne v Dunn (1893) 6 R 67
Carnaby v R [2021] NSWCCA 203
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65
R v Birks (1990) 19 NSWLR 677
R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509
The Queen v…

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 Carnaby v The Queen

Details

AGLC: Carnaby v The Queen [2021] NSWCCA 275
Case: [2021] NSWCCA 275
Decision Date: 19 November 2021

CaseChat Overview and Summary

The case of Carnaby v The Queen involved an appeal against the applicant's conviction. The applicant had been represented by competent trial counsel but subsequently withdrew his instructions. The trial judge faced the challenge of managing delays in obtaining new counsel, the length of the trial to date, and the applicant's ability to conduct the trial. The applicant contested several aspects of the trial, including the jury's acceptance or rejection of witness evidence, the Crown's obligation to call all relevant witnesses, and the admissibility of certain evidence. The applicant argued that the verdicts were unreasonable due to inconsistencies in a witness's evidence and that the Crown had failed to call or make available for cross-examination all relevant witnesses.

The court addressed these issues by examining the jury's role in accepting or rejecting evidence and noted that no appeal lies against a verdict of not guilty. It was determined that the Crown's obligation to call relevant witnesses did not apply to those who could not be located, and evidence of unsuccessful attempts to locate such witnesses was deemed sufficient. The court found that no fundamental inconsistency in the evidence had caused reasonable doubt about the applicant's involvement. Furthermore, the trial judge's decision not to admit evidence of a co-offender's previous conviction, where the circumstances were unknown, was upheld. The court concluded that none of the verdicts of guilt were unsafe, unreasonable, or inconsistent, and it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The court also noted that the trial judge had taken significant steps to ensure the applicant received a fair trial, and the jury's deliberation time was not unreasonably short.

The court dismissed the appeal against conviction, finding that none of the verdicts were unsafe, unreasonable, or inconsistent. The applicant's second application for bail, made for the purposes of preparing his appeal, was also dismissed as the basis for the bail being granted had fallen away.

Orders