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Evans v R

Evans v R

Case [2006] NSWCCA 277 9 April 2006

Appeal

Admissibility of Evidence

Alibi

Judicial Review

Criminal Law

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Reported Decision:
164 A Crim R 489

New South Wales

Court of Criminal Appeal

CITATION: Evans v Regina [2006] NSWCCA 277

HEARING DATE(S): 22/05/2006

JUDGMENT DATE:
7 September 2006

JUDGMENT OF: James J at 1; Hidden J at 290; Hoeben J at 292

EX TEMPORE JUDGMENT DATE: 09/04/2006

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW: - appeal against conviction - armed robbery - whether items of clothing similar to those worn by robber found at accused's home admissible - whether permissible for prosecutor to show witnesses items of clothing and ask them to comment upon them - whether permissible for Crown prosecutor to have accused put on item of clothing and repeat words of robber - rejection of alibi evidence because of absence of notice - failure of trial judge to give any or adequate reasons for rulings during trial - application of proviso

LEGISLATION CITED: Evidence Act 1995
Criminal Procedure Act
Criminal Appeal Act

CASES CITED: R v Kirby (unreported 2000 NSWCCA 330
Scott v Numurkah Corporation (1954) 91 CLR 300
R v Milat (NSWSC Hunt CJ at CL 12 April 1996
FD v Regina [2006] NSWCCA 31
Bulejcik v The Queen (1994-1995) 185 CLR 375
KNP v Regina [2006] NSWCCA 213
Skondin v Regina [2005] NSWCCA 417
Harris v Regina NSWCCA (2005) 432
Fleming v The Queen (1998) 197 CLR 250
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Niass v Regina [2005] NSWCCA 120
Weiss v The Queen (2005) 80 ALJR 444

PARTIES: Graham John Evans (appellant)
Regina (Crown)

FILE NUMBER(S): CCA 2006/328

COUNSEL: G Bashir (appellant)
D Frearson (Crown)

SOLICITORS: Legal Aid Commission (appellant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0254

LOWER COURT JUDICIAL OFFICER: Backhouse DCJ

LOWER COURT DATE OF DECISION: 22/11/2004

2006/328

JAMES J
HIDDEN J
HOEBEN J
7 September 2006

GRAHAM JOHN EVANS v REGINA

Judgment

1 JAMES J: Graham John Evans appealed against his conviction on two charges of armed robbery (the first two counts in the indictment) and one charge of assault with intent to rob (the third count in the indictment). The third count in the indictment had originally charged a third offence of armed robbery. However, at a late stage in the trial the prosecutor, with the leave of the trial judge, amended the third count to a charge of assault with intent to rob.

2 It was alleged by the Crown that the three offences of which the appellant was convicted had been committed on the same day, 28 February 2002, in the chambers of the Strathfield Municipal Council. At the trial there was no dispute that on 28 February 2002 a man had entered the Council chambers and had committed the three offences. This man was wearing overalls and a balaclava which covered his head. The live issue at the trial was whether the Crown could prove that the appellant was the offender.

3 At the time the offences were…

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 Evans v R

Details

AGLC: Evans v R [2006] NSWCCA 277
Case: [2006] NSWCCA 277
Decision Date: 04/09/2006

CaseChat Overview and Summary

Evans was convicted of armed robbery and appealed to the High Court of Australia. The appeal involved the admissibility of clothing items found at the appellant's home, similar to those worn by the robber. The appeal also questioned the permissibility of the prosecutor showing witnesses these items of clothing and asking for their comments. Additionally, it examined whether it was appropriate for the Crown prosecutor to have the accused don the item of clothing and repeat the robber's words. Furthermore, the case addressed the rejection of the appellant's alibi evidence due to the absence of notice and the trial judge's failure to provide any or adequate reasons for the rulings during the trial.

The legal issues before the court encompassed whether the evidence of the clothing items was admissible, the appropriateness of the prosecutor's actions in showing the items to witnesses and the accused, the effect of the absence of notice on the alibi evidence, and the trial judge's obligation to provide reasons for the rulings. The court considered whether the proviso applied to these circumstances and if the trial judge's actions had prejudiced the appellant's case.

The court held that the trial judge's failure to provide reasons for his rulings had prejudiced the appellant's case, necessitating a retrial. The High Court found that the proviso applied, and the absence of notice did not necessarily exclude the alibi evidence. However, the trial judge's failure to provide reasons for his rulings during the trial was a significant error that warranted a new trial. Consequently, the court ordered a retrial for the appellant.

Orders