Gordon v The Queen

[2009] NSWCCA 60

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Gordon v R [2009] NSWCCA 60

FILE NUMBER(S):
2005/11776

HEARING DATE(S):
9 March 2009

EX TEMPORE DATE:
9 March 2009

PARTIES:
Daniel Tasman GORDON - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
Grove J Blanch J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/21/3277

LOWER COURT JUDICIAL OFFICER:
Armitage A/DCJ

LOWER COURT DATE OF DECISION:
15 February 2008

COUNSEL:
N Carroll - Applicant
V Lydiard - Respondent/Crown

SOLICITORS:
George Sten & Co - Applicant
Solicitor for Public Prosecutions - Respondent

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Application to add ground of appeal
Assertions incapable of demonstrating miscarriage
Application refused

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
Leave to amend ground refused

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/11776

GROVE J
BLANCH J
PRICE J

Monday 9 March 2009  

Daniel Tasman GORDON  v  REGINA

JUDGMENT

1. GROVE J:   When this appeal was called on for hearing counsel for the appellant sought to amend the grounds of appeal to add an additional ground which has been articulated as follows:

   "The verdict was unsafe and/or dangerous in all the circumstances of the proceedings".

2. In response to enquiry from the Bench counsel has elaborated that ground by particularizing the focus of complaint upon two matters.   First, it is contended that there was some undue time pressure upon the jury, and second, that, if permitted, evidence could be given of an observation of one of the jurors appearing to be distressed at the time of returning of the verdict. 

3. The issue in the trial was narrow, and the totality of the evidence was relatively brief.   The record shows that the jury retired at 12.58 on a Friday.  The record also shows that from time to time during the afternoon the jury returned to Court in order to obtain further direction and to be reminded of some of the evidence that they had heard or, in the case of a CCTV product, that they had seen.

4. The jury returned its verdict of guilty at 6.35 p.m. that night.  It is significant to note that during the afternoon the jury had been told by his Honour in relation to the time of the afternoon that if they wished to go home at something of the order of half past five there was no problem, and they could come back on Monday.  He also told them that they could stay on if they wanted to.   There is no indication at all of any undue pressure being placed upon the jury. 

5. It is true, as I have observed, that the jury were embarked upon deliberations on a Friday afternoon, but that of itself is not a reason which would give rise to a reasonable complaint.   The observation of the juror, assuming for present purposes that evidence to that effect could be given, is something which is commonly experienced by presiding Judges.  That is to say, observation is made that jurors returning a verdict have been distressed by the enormity of the serious task upon which they have been engaged. 

6. Although the ground as formulated does not articulate it in these terms, it must be that what is complained of is that, for one or other or both of the reasons particularised, miscarriage can be observed. 

7. In my view that observation or conclusion would not be available from the material which is before the Court.  The Crown opposes the amendment.  I consider the Crown opposition is well founded, and I would refuse leave to amend the ground. 

8. BLANCH J:  I agree.

9. PRICE J:  I agree.

10. GROVE J:  Leave is refused.

    **********

LAST UPDATED:
11 March 2009