PARTIES: CARR, Mark Anthony HAMPTON, Michael John PYKE, Tony Allan
WELLS, Reginald Michael v R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE
FILE NO/S: CCA 19/2002
CCA 23/2002 CCA 25/2002 CCA 26/2002
DELIVERED ON: 3 September 2002 DELIVERED AT: Hobart HEARING DATES: 11 - 13 June 2002 JUDGMENT OF: Cox CJ, Underwood and Crawford JJ
CATCHWORDS:
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Corroboration - Direction to jury - Adequacy of warning - Generally - Accomplices - Whether necessary to warn of risk of an innocent man being convicted - Whether necessary to direct that Crown could appeal against accomplice's sentence if he did not give evidence in accordance with undertaking - Direction raising question of why would accomplice lie.
R v Stewart (1986) 83 Cr App R 327, referred to. Palmer v R (1998) 193 CLR 1, explained. Aust Dig Criminal Law [599]
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Corroboration - Direction to jury - Adequacy of warning - Evidence capable of amounting to corroboration - Accomplices - Extent of duty to identify evidence capable of corroborating accomplice - Effect of comments on that evidence.
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Non-parole period - Order that no eligibility.
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Conduct of trial judge - Interference by judge in conduct of case - Whether excessive cross-examination of accused - Whether summing up unfair to accused.
Evidence - Witnesses - Corroboration - Admissions - Conduct - Other conduct - Lies told or adopted by accused - Form of direction to jury - Whether lie an admission.
Counsel: Appellant Carr: D I Ross QC and C J Gibson Appellant Hampton: D F M Zeeman Appellant Pyke: M F Daly Appellant Wells: B Fox Respondent: T J Ellis SC and L A Mason Solicitors: Appellant Carr: A T Legals Appellant Hampton: Butler McIntyre & Butler Appellant Pyke: E R Henry Wherett & Benjamin
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.
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Details
AGLC
Carr v R [2002] TASSC 60
Case
[2002] TASSC 60
Decision Date
CaseChat Overview and Summary
The four appellants, Mark Anthony Carr, Michael John Hampton, Tony Allan Pyke, and Reginald Michael Wells, appealed against their convictions and sentences for burglary and theft. The Crown case relied on the evidence of Craig Anthony Sherman, the fifth participant in the crimes, who had pleaded guilty and agreed to testify against the appellants in return for a reduced sentence. The appellants argued that the trial judge's directions to the jury concerning the evidence of the accomplice, corroboration, and the lies direction were defective and resulted in a miscarriage of justice. They also claimed that the trial judge's cross-examination of one of the appellants and his summing up were unfair and prejudicial. The appellants appealed against their sentences, arguing that the trial judge erred in ordering that they not be eligible for parole. The Court of Criminal Appeal dismissed all appeals. The Court found that the trial judge's directions to the jury were adequate and did not result in a miscarriage of justice. The Court also found that the trial judge's cross-examination of the appellant and his summing up were fair and did not prejudice the appellants. Finally, the Court found that the trial judge did not err in ordering that the appellants not be eligible for parole, given the nature of the crimes, the appellants' criminal histories, and their lack of remorse.