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Harris v R

Harris v R

Case [2005] NSWCCA 432 14 December 2005

Admissibility of Evidence

Self-Defence

Criminal Law

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Reported Decision:
158 A Crim 454

New South Wales

Court of Criminal Appeal

CITATION:
Harris v R [2005] NSWCCA 432

HEARING DATE(S): 6 December 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
Grove J at 1; Studdert J at 6; Whealy J at 66

DECISION:
Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - admissibility of statement by deceased victim - whether made "shortly after" the asserted fact - whether in circumstances that made it unlikely that the representations a fabrication - Evidence Act s65(2)(b). CRIMINAL LAW - summing up - self defence - whether jury sufficiently alerted as to need for Crown to exclude reasonable possibility of the appellant having acted in self defence.

LEGISLATION CITED:

Criminal Appeal Rules, r 4
Evidence Act, s 65

CASES CITED:
Conway v The Queen (2000) 98 FCR 204
Dinsdale v The Queen (2000) 202 CLR 321
Liberato v The Queen (1984-85) 159 CLR 507
R v Ambrosoli (2002) 55 NSWLR 603
R v Burt (2003) 140 A Crim R 555
R v Ita (2003) 139 A Crim R 340
R v Mankotia (unreported, Sperling J, 27 July 1998)
R v Polkinghorne (1999) 108 A Crim R 189
R v Thomson & Houlton (2000) 49 NSWLR 383
Saulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Williams v The Queen (2000) 199 A Crim R 490

PARTIES:
Frederick O'Neal Harris v Regina

FILE NUMBER(S):
CCA 2005/1292

COUNSEL:
H. Dhanji (Appellant)
D. Frearson SC (Crown)

SOLICITORS:
S. O'Connor (Appellant)
S. Kavanagh (Crown)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0064

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

2005/1292

GROVE J
STUDDERT J
WHEALY J
Wednesday 14 December 2005

FREDERICK O’NEAL HARRIS v REGINA

Judgment

1 GROVE J: I have the benefit of reading the draft of judgment of Studdert J and I wish only to add some brief comment concerning an argument advanced by the appellant in support of Ground 3.

2 In a written submission, it was contended that

“a finding of not guilty was not dependent on any finding of fact, but rather the finding that the Crown had failed to exclude a reasonable hypothesis that either the appellant believed that his conduct was necessary to defend himself or that what the appellant did was a reasonable response to the circumstances as he perceived them to be.”

3 The submission implies a disjoinder of the jury’s fact-finding function from the application of the stated alternative tests. The legal tests are not applied in a vacuum but upon the facts as the jury have found them to be. When the learned trial judge invited the jury to first determine the facts, he would have been understood as doing no more than guiding the jury in the proper application to their task.

4 As Studdert J has demonstrated, the directions in his Honour’s charge to the jury made it clear that the burden and standard of proof required the Crown to exclude the reasonable possibility of the appellant having acted in self defence.

5…

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 Harris v R

Details

AGLC: Harris v R [2005] NSWCCA 432
Case: [2005] NSWCCA 432
Decision Date: 14 December 2005

CaseChat Overview and Summary

The case of Harris v R involved the appellant, Harris, who was charged with the murder of a deceased victim. Harris claimed that the death was the result of an accidental shooting and that he acted in self-defence. The main issue before the court was whether a statement made by the deceased victim to a third party, which was admitted into evidence, was admissible under section 65(2)(b) of the Evidence Act. The court also needed to determine whether the summing up by the trial judge adequately addressed the concept of self-defence, ensuring the jury understood the Crown's burden to exclude the reasonable possibility of the appellant acting in self-defence.

The court considered whether the statement made by the deceased was "shortly after" the asserted fact and whether it was made in circumstances that made it unlikely that the statement was a fabrication. The court found that the statement was indeed made shortly after the incident and in circumstances that diminished the likelihood of fabrication. The court held that the statement was admissible under the exception to the hearsay rule provided by section 65(2)(b) of the Evidence Act. Additionally, the court examined the summing up to determine if it sufficiently alerted the jury to the necessity for the Crown to disprove the reasonable possibility of self-defence. The court concluded that the summing up was adequate, as it correctly directed the jury on the principles of self-defence and the burden on the Crown.

In conclusion, the court held that the statement made by the deceased victim was admissible under section 65(2)(b) of the Evidence Act. Furthermore, the trial judge's summing up was deemed sufficient in alerting the jury to the necessity for the Crown to exclude the reasonable possibility of the appellant acting in self-defence. The court's decision upheld the conviction of the appellant for murder, as the jury was properly instructed and the statement was correctly admitted into evidence.

Orders