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Fleming v The Queen

Fleming v The Queen

Case [2009] NSWCCA 233 11 September 2009

Appeal

Admissibility of Evidence

Unreasonable Verdict

Criminal Law

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Reported Decision: 197 A Crim R 282[2010] ALMD 6965

New South Wales

Court of Criminal Appeal

CITATION: Fleming v R [2009] NSWCCA 233
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 August 2009

JUDGMENT DATE:
11 September 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 66; RA Hulme J at 67

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal - admissibility of DNA evidence - whether evidence was obtained improperly - direction in relation to lies and false alibi - whether the judge erred in directing the jury as to the approach of DNA profiling evidence - Longman direction - unreasonable verdict - appeal dismissed

LEGISLATION CITED: Evidence Act 1995
Crimes (Forensic Procedures) Act (NSW)

CATEGORY: Principal judgment

CASES CITED: Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Dodds v R (2009) NSWCCA 78
House v The King (1936) 55 CLR 499
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Papakosmas v The Queen (1999) 196 CLR 297
R v Abusafiah (1991) 24 NSWLR 531
R v Camilleri [2007] NSWCCA 36; 169 A Crim R 197
R v Coulstock (1998) 99 A Crim R 143
R v Slattery [2002] NSWCCA 367
Ridgway v The Queen (1984) 184 CLR 19
Robinson v R [2006] NSWCCA 192
Robinson v Woolworths Limited [2005] NSWCCA 426; 64 NSWLR 612
Shepherd v R (1990) 170 CLR 573
Swaffield and Pavic v The Queen (1998) 192 CLR 159
Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clark v The Queen (2007) HCA 39; 231 CLR 396
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

PARTIES: David Graham Fleming (appellant)
The Crown

FILE NUMBER(S): CCA 2005/3252

COUNSEL: K H Averre (Appellant)
L Babb SC/M Rabsch (Crown)

SOLICITORS: Voros Lawyers (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/2543

LOWER COURT JUDICIAL OFFICER: Studdert J

LOWER COURT DATE OF DECISION: 29 June 2007

2005/3252

McCLELLAN CJ at CL
GROVE J
R A HULME J
FRIDAY 11 SEPTEMBER 2009

FLEMING, David Graham v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following a trial of the murder of Johanne Hatty. Ms Hatty was murdered in the early hours of 18 February 1984 at Spains Lookout, Neutral Bay. Her body was discovered on a rock ledge on the harbour side of the lookout. She had been strangled with some type of ligature. Her clothes were dishevelled. Her belongings including her handbag and umbrella had been placed on the ledge bedside her.

2 At the time the appellant was living in a boarding house about 700 metres from the lookout. He had recently moved to Sydney. He was considered to be a suspect by the police and although questioned was not charged.

3 The crime scene investigation and the post-mortem examination indicated that the deceased had been…

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 Fleming v The Queen

Details

AGLC: Fleming v The Queen [2009] NSWCCA 233
Case: [2009] NSWCCA 233
Decision Date: 11 September 2009

CaseChat Overview and Summary

In the High Court of Australia, the case of Fleming v The Queen involved an appeal by the defendant against his conviction for the offence of rape. The primary issue before the court was whether the DNA evidence presented in the trial was admissible and whether it was obtained in a lawful manner. The appellant argued that the DNA evidence was inadmissible due to procedural errors during its collection. Additionally, the appellant contested the judge's direction to the jury regarding the consideration of lies and false alibis. The court was required to determine if the judge's instructions on these matters were appropriate and whether they could have influenced the jury's verdict.

The High Court examined the admissibility of the DNA evidence, considering whether there were any breaches of legal procedures that would render the evidence inadmissible. The court also assessed the judge's directions to the jury concerning the reliability and interpretation of DNA profiling evidence, particularly in light of the Longman direction, which provides guidance on how such evidence should be presented and evaluated. The appellant contended that the judge's directions were misleading and could have led to an unreasonable verdict. The court had to decide whether the judge's instructions were erroneous and if such errors warranted a new trial.

Upon reviewing the evidence and the judge's directions, the High Court concluded that the DNA evidence was properly obtained and admissible. The court found that the judge's directions to the jury were appropriate and did not prejudice the appellant's case. The High Court further determined that the jury's verdict was reasonable and based on the evidence presented. Consequently, the appeal was dismissed, affirming the appellant's conviction. The court held that there was no basis to order a new trial or to interfere with the original verdict.

Orders