Col v R

Case [2013] NSWCCA 302 3 December 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Col v R [2013] NSWCCA 302
Hearing dates: 29 August 2013
Decision date: 03 December 2013
Before: Latham J at [1]
Rothman J at [71]
Davies J at [78]
Decision:
Appeal against conviction dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - offence of causing grievous bodily harm with intent to cause grievous bodily harm - appellant threw methylated spirits onto bed where victim lay and ignited bedclothes - victim retracted earlier statement to police - whether trial judge erred in admitting into evidence complainant's statement to police - whether use of victim's statement to police resulted in miscarriage of justice - whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice - whether Zoneff direction was required - whether verdict is unreasonable or cannot be supported having regard to evidence - appeal dismissed
Legislation Cited: Crimes Act 1990
Evidence Act 1995
Evidence Amendment Act 2007
Cases Cited: Adam v The Queen [2001] HCA 57
Baini v The Queen [2012] HCA 59 ; 246 CLR 469
Brendon Singh v R [2011] NSWCCA 100
Butera v DPP (Vic) (1987) 164 CLR 180
Driscoll v The Queen (1977) 137 CLR 517
Edwards v The Queen (1993) 178 CLR 193
Gateley v The Queen [2007] HCA 55 ; (2007) 232 CLR 208
Lee v R [2013] NSWCCA 68
Libke v The Queen [2007] HCA 30 ; 230 CLR 559
M v The Queen [1994] HCA 63 ; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53 ; (2002) 213 CLR 606
R v Aslett [2006] NSWCCA 49
R v Fletcher [2005] NSWCCA 338
R v Heyde (1990) 20 NSWLR 234
R v Michael Anthony Ryan (No.7) [2012] NSWSC 1160 ; 218 A Crim R 384.
R v NZ [2005] NSWCCA 278 ; (2005) 63 NSWLR 628
R v XY [2013] NSWCCA 121
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Zoneff v The Queen [2000] HCA 28 ; 200 CLR 234
Category: Principal judgment
Parties: Murat Col - (Appellant)
Regina - (Crown Respondent)
Representation: Counsel:
T Gartelmann - (Appellant)
S Herbert - (Crown Respondent)
Solicitors:
Hanby & Associates - (Appellant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2009/61584
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-08-12 00:00:00

Before:

Lakatos SC DCJ

File Number(s):

2009/61584

Judgment

LATHAM J : The appellant, Murat Col, appeals against his conviction after a trial before Lakatos SC DCJ in August 2011 with respect to the offence of causing grievous bodily harm with intent to cause grievous bodily harm pursuant to s 33(1)(b) of the Crimes Act 1990. There is no appeal against sentence.

The Crown Case

At the time of the offence, the appellant was 40 years of age and lived with his de facto partner, Maryanne Scott, who was the victim of the offence. The circumstances of the offence summarised below derives substantially from a statement provided by the victim to police but…

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 Col v R

Details

AGLC: Col v The Queen [2013] NSWCCA 302
Case: [2013] NSWCCA 302
Decision Date: 03 December 2013

CaseChat Overview and Summary

The appellant, Col, was convicted of causing grievous bodily harm with intent to cause grievous bodily harm and appealed against his conviction. The case was heard in the court of appeal. The central issue was whether the trial judge had erred in admitting the victim's statement to the police, which was later retracted by the victim, into evidence. The appellant argued that the use of the retracted statement resulted in a miscarriage of justice. Additionally, the appellant claimed that the evidence disclosing consciousness of guilt should not have been used and that a Zoneff direction was necessary. The court also considered whether the verdict was unreasonable or could not be supported by the evidence.

The court of appeal examined the trial judge's decision to admit the retracted statement. It noted that the statement was relevant and probative, and the trial judge had not erred in admitting it. The court also found that the use of the retracted statement did not result in a miscarriage of justice. Regarding the evidence of consciousness of guilt, the court held that it was properly admitted and did not prejudice the appellant. The court further determined that a Zoneff direction was not required and that the verdict was reasonable and supported by the evidence. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders