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Cawthray v R

Cawthray v R

Case [2013] NSWCCA 105 9 May 2013

Appeal

Jurisdiction

Admissibility of Evidence

Causation

Retrial

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hilton John Cawthray v R [2013] NSWCCA 105
Hearing dates: 15 February 2013
Decision date: 09 May 2013
Before: Hoeben CJ at CL at [1]
Adams J at [6]
Beech-Jones J at [97]
Decision:
1. Leave to appeal granted.

2. Appeal upheld, conviction on both counts quashed.
3. Verdicts of acquittal be entered.
Catchwords: Criminal Law – appeal against conviction – judge alone trial – adequacy of required warnings – failure of trial judge to take into account possibility of confabulation – whether retrial appropriate – appellant served most of sentence.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Arun v R [2010] NSWCCA 214
Crofts v The Queen (1996) 186 CLR 427
Douglass v R [2012] HCA 34; 290 ALR 699
Fleming v R [1998] HCA 68; 197 CLR 250
Haoui v Regina [2008] NSWCCA 209
Jiminez v The Queen [1992] HCA 14; 173 CLR 572
Keir v The Queen [2007] NSWCCA 149
Kilby v R (1973) 129 CLR 460
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v R [1994] HCA 63; 181 CLR 487
Murray v R [2002] HCA 26; 189 ALR 40
R v Hughes [2000] NSWCCA 3
R v Ion (1996) 89 A Crim R 81
R v Kennedy [2000] NSWCCA 487; (2000) 118 A Crim R 34
R v Kurtic (1996) 85 A Crim R 57
R v LTP [2004] NSWCCA 109
R v Markuleski (2001) 52 NSWLR 82
R v Moffatt (2000) 112 A Crim R 201
R v Murray (1987) 11 NSWLR 12
R v NZ [2005] NSWCCA 278
R v O'Donoghue (1988) 34 A Crim R 397
R v Pfitzner (1976) 15 SASR 171
R v VHP (Court of Criminal Appeal, 7 July 1997, unreported)
R v Williams (1999) 104 A Crim R 260
SKA v R; R v SKA [2009] NSWCCA 186
SKA v R [2011] HCA 1; 243 CLR 400
SKA v R [2012] NSWCCA 205
The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Category: Principal judgment
Parties: Hilton John Cawthray (Appellant)
Regina (Respondent)
Representation:
Counsel:
E Wilson SC & M King (Appellant)
J Girdham SC (Respondent)
Solicitors:
Mark Klees & Associates (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/337945
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

09 September 2011

Before:

Blackmore DCJ

File Number(s):

2010/337945

Judgment

HOEBEN CJ at CL: For the reasons set out by Adams J and Beech-Jones J, I agree that to the extent necessary, leave should be granted to the applicant to rely upon Grounds of Appeal 2(a), 2(b), 2(c) and 2(d). For the reasons set out by their Honours, I accept that those Grounds of Appeal have been made out essentially on the basis set out in Douglass v R [2012] HCA 34; 290 ALR 699

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 Cawthray v R

Details

AGLC: Cawthray v R [2013] NSWCCA 105
Case: [2013] NSWCCA 105
Decision Date: 09 May 2013

CaseChat Overview and Summary

In the matter of Cawthray v R, the appellant appealed against his conviction for a criminal offence tried by a judge alone. The crux of the dispute centred on the adequacy of the warnings given by the trial judge, specifically whether the judge failed to consider the potential for confabulation by the sole witness to the crime. The appellant argued that this oversight necessitated a retrial as it compromised the fairness of the trial, particularly since he had served the majority of his sentence. The case was heard and determined by the court, which was tasked with deciding whether the trial judge's failure to consider confabulation was a significant enough error to warrant a retrial, and whether, given the substantial time already served by the appellant, the circumstances justified any further action.

The court was required to address two primary legal issues: firstly, whether the trial judge's failure to warn about the potential for confabulation by the sole witness constituted a material error that could have affected the outcome of the trial; and secondly, whether, in light of this error, a retrial was warranted despite the appellant having served most of his sentence. The court also needed to consider the principles of fairness and the adequacy of the trial process, particularly in the context of a judge alone trial, where the trial judge bears the dual role of both adjudicator and fact-finder.

The court held that the trial judge's omission to consider the potential for confabulation did indeed constitute a material error. The court found that the failure to provide a warning regarding confabulation could have significantly affected the trial's outcome, as confabulation could have led to an unreliable account of events. The court acknowledged that the appellant had served most of his sentence but emphasised that the integrity of the judicial process and the principles of fairness and justice could not be compromised. Consequently, the court concluded that a retrial was necessary to ensure that the appellant received a fair trial untainted by the error made during the original proceedings. The court's decision underscored the importance of properly considering all aspects of witness credibility, particularly in a judge alone trial, to maintain the highest standards of judicial fairness.

Orders