Glynn v The Queen - [2020] NSWCCA 347

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Glynn v R [2020] NSWCCA 347
Hearing dates: 18 November 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Before: Hoeben CJ at CL; Price J; Fagan J
Decision:
(1) Appeal upheld.
(2) The appellant’s conviction and sentence are quashed.
(3) List the case for mention at the District Court at Sydney on 22 January 2021 at 9:30am.

Catchwords:
CRIMINAL LAW – appeal against conviction – jury verdict of guilty to an alternative count of recklessly causing grievous bodily harm – Crown concession of error by trial judge in refusing to admit a video into evidence – whether proviso should be applied – whether oral testimony contrary to the Crown case was obviously false – unnecessary to consider whether case was extreme – powerful prosecution case – credibility of witnesses was crucial – witness’ credibility undermined by evidence of police officer – witness credibility supported by the video – appellant denied fair chance of acquittal – new trial ordered

Legislation Cited:
Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act1995 (NSW), ss 38, 165(2)

Cases Cited:
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; 253 A Crim R 126
Hofer v R [2019] NSWCCA 244
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; 271 A Crim R 245
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; 158 A Crim R 133

Category: Principal judgment
Parties: Robert Glynn (Appellant)
Regina (Respondent)
Representation:
Counsel:
A Chhabra (Appellant)
M Kumar (Respondent)
Solicitors:
E Rowe (Appellant)
Solicitor for the Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/00182306
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 268

Date of Decision:

16 April 2020

Before:

King SC DCJ

File Number(s):

2015/00182306

Judgment

THE COURT: On 5 November 2019, Robert Glynn (“the appellant”) was arraigned on an indictment charging him with causing grievous bodily harm to Tom Bablis (“the complainant”) on 20 June 2015 at Earlwood contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) (“count 1”). There was an alternative count of recklessly causing grievous bodily harm to the complainant contrary to s 35(2) of the Crimes Act (“the alternative count”). The appellant pleaded not guilty to each count.
On 18 November 2019, the jury returned a verdict of not guilty to count 1 and a verdict of guilty to the alternative count. He was sentenced to a term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months to commence on 12 April 2020 and to expire on 11 July 2021. The balance of the term of 1 year and 3 months is to commence on 12 July 2021 and…

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 Glynn v The Queen

Details

AGLC: Glynn v The Queen [2020] NSWCCA 347
Case: [2020] NSWCCA 347
Decision Date: 17 December 2020

CaseChat Overview and Summary

Glynn was found guilty by a jury of an alternative count of recklessly causing grievous bodily harm. The Crown appealed against the sentence, but the appeal was dismissed. Glynn then appealed against the conviction, arguing that the trial judge erred in refusing to admit a video into evidence. The Crown conceded this error, and the question before the court was whether the proviso in s 192 of the Criminal Procedure Act 2009 (Vic) should be applied, given that the video was crucial to the appellant's defence. The court also considered whether the oral testimony that was contrary to the Crown case was obviously false, but found it unnecessary to consider whether the case was extreme. The court held that the credibility of the witnesses was crucial to the outcome of the case, and that the appellant's witness' credibility was undermined by evidence of a police officer. However, the video supported the credibility of the appellant's witness, and the appellant was denied a fair chance of acquittal. The court ordered a new trial.

The court held that the trial judge's error in refusing to admit the video into evidence was significant, as it was crucial to the appellant's defence. The court found that the proviso in s 192 of the Criminal Procedure Act 2009 (Vic) should be applied, and that the appellant was denied a fair chance of acquittal. The court held that the credibility of the witnesses was crucial to the outcome of the case, and that the appellant's witness' credibility was undermined by evidence of a police officer. However, the video supported the credibility of the appellant's witness, and the court found that the appellant was denied a fair chance of acquittal. The court ordered a new trial, and the conviction was quashed.

Orders