Criminal Law - murder - appeal against conviction - admissibility of evidence - evidence of relationship - whether evidence constituted propensity evidence that should have been excluded - meaning and scope of “propensity evidence” - whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule - whether deceased’s oral statements made shortly after the asserted fact - whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication - whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable - whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule - whether directions to the jury on the use of relationship evidence adequate.

Criminal Law - murder - appeal against conviction - accomplices - warning - need for under ss 164 and 165 of the Evidence Act 1995 (Cth) - whether adequate warning given in the circumstances of the case - whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices - whether incorrect identification led to miscarriage of justice.

Criminal Law

- murder - appeal against conviction - whether sufficient direction on
co-conspirator rule - whether trial judge’s intervention during cross-examination of
co-accused caused trial to miscarry - whether evidence of an out of court statement by a
co-accused wrongly rejected - whether proper directions given on evidence of good character - whether question arose as to an accused’s fitness to stand trial - whether trial judge failed to properly direct on accused’s failure to recall certain events - whether trial judge failed to adequately put the defence case of one accused to the jury.

Evidence Act 1995 (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165
Law and Justice Legislation Amendment Act 1999 (Cth), s 13
Crimes Act 1900 (ACT), ss 345, 428E
Mental Health (Treatment and Care) Act 1994 (ACT), s 68

Harriman v The Queen (1989) 167 CLR 590 cited
Pfennig v The Queen (1995) 182 CLR 461 considered
Hoch v The Queen (1988) 165 CLR referred to
S v The Queen (1989) 168 CLR 266 referred to
Gipp v The Queen (1998) 194 CLR 106 discussed
Wilson v The Queen (1970) 123 CLR 334 cited
R v Bond [1907] 2 KB 389 cited
O’Leary v The King (1946) 73 CLR 566 discussed
Martin v Osborne (1936) 55 CLR 367 referred to
R v Tsingopoulos [1964] VR 676 discussed
R v Frawley (1993) 69 A Crim R 208 referred to
B v The Queen (1992) 175 CLR 599 cited
R v Lock (1997) 91 A Crim R 356 discussed
Subramaniam v Public Prosecutor [1956] 1 WLR 965 referred to
Ratten v The Queen [1972] AC 378 referred to
R 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 Conway v R

Details

AGLC: Conway v R [2000] FCA 461
Case: [2000] FCA 461
Decision Date: 11 APRIL 2000

CaseChat Overview and Summary

The Federal Court of Australia, in Conway v R, upheld the convictions of John Terence Conway and Kathy Marie McFie for the murder of Ulrike Conway. The appeals against their convictions were dismissed. The court addressed various grounds of appeal, including the admissibility of evidence, the adequacy of the trial judge's directions to the jury, and the fairness of the trial process. The court found that the evidence, including the "coffee incident" and the "Heldon tapes," was properly admitted and relevant to the case. The trial judge's directions to the jury were deemed adequate, and the trial process was found to be fair. The court concluded that the appeals against conviction should be dismissed.

Orders