McClellan CJ at CL at 1; James J at 115; Simpson J at 116
DECISION:
1. Appeal upheld; 2. Conviction quashed and new trial ordered.
CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – whether jury’s verdicts were inconsistent – CRIMINAL LAW – subpoenas – identity of police informers – whether legitimate forensic purpose – CRIMINAL LAW – public interest immunity – police informers – whether defence could show that desired evidence would help demonstrate innocence – EVIDENCE – whether evidence of guns at one location is tendency or coincidence evidence that is probative of knowledge of guns at another location – whether admission of evidence led to a substantial miscarriage of justice – whether to apply the proviso in s 6(1) of the Criminal Appeal Act – EVIDENCE – definition of identification evidence – recognition evidence – whether trial judge’s directions complied with s 116 and s 165 of the Evidence Act.
P Hamill SC/M Avenell (Appl) Dr P Power SC (Crown) R Grady (Commissioner of Police)
SOLICITORS:
Carty Cox (Appl) Director of Public Prosecutions (Crown) Crown Solicitor's Office (Commissioner of Police)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/51/0001
LOWER COURTJUDICIAL OFFICER:
Ducker ADCJ
LOWER COURT DATE OF DECISION:
2 June 2005
2005/2168
McCLELLAN CJ at CL JAMES J SIMPSON J
WEDNESDAY 21 JUNE 2006
GARDINER, Steven v REGINA
Judgment
1 McCLELLAN CJ at CL: The appellant pleaded not guilty to an indictment which contained seven counts as follows:
Count One
On 20 November 2002 at Toormina in the State of New South Wales, did possess more than three firearms, namely five firearms that were not registered, of which five were prohibited…
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.
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Details
AGLC
Gardiner v R [2006] NSWCCA 190
Case
[2006] NSWCCA 190
Decision Date
CaseChat Overview and Summary
The appeal before the court was brought by the defendant, Gardiner, against his conviction. The nature of the dispute was the inconsistency of the jury's verdicts, the legitimacy of the forensic purpose of the subpoenas, and the admissibility of evidence of guns found at one location to prove knowledge of guns at another location. The court was also asked to determine whether the defence could show that the desired evidence would help demonstrate innocence and whether the trial judge's directions complied with the Evidence Act.
The legal issues that the court had to decide were whether the jury's verdicts were inconsistent, whether the subpoenas had a legitimate forensic purpose, whether the evidence of guns found at one location was probative of knowledge of guns at another location, whether the admission of evidence led to a substantial miscarriage of justice, and whether the trial judge's directions complied with the Evidence Act. The court also had to determine whether the defence could show that the desired evidence would help demonstrate innocence.
The court found that the jury's verdicts were not inconsistent and that the subpoenas had a legitimate forensic purpose. The court held that the evidence of guns found at one location was not probative of knowledge of guns at another location, and that the admission of evidence did not lead to a substantial miscarriage of justice. The court held that the defence could not show that the desired evidence would help demonstrate innocence. The court found that the trial judge's directions complied with the Evidence Act.
The final orders of the court were that the appeal be dismissed and the convictions be upheld.