Harvey v The Queen - [1999] WASCA 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HARVEY -v- R [1999] WASCA 51

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 14 MAY 1999

DELIVERED : 15 JUNE 1999

FILE NO/S: CCA 26 of 1999

BETWEEN: RONALD WILLIAM HARVEY
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal and new trial - Evidence - Prejudicial material admitted - Whether cured by judge's direction

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr R D Young
Respondent: Mr S P Pallaras & Ms L B Black

Solicitors:

Appellant: Gunning
Respondent: Acting State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Crofts v The Queen (1996) 186 CLR 427
Demirok v The Queen (1997) 137 CLR 20
Maric v The Queen (1978) 52 ALJR 631

Case(s) also cited:

R v Hally [1962] Qd R 214
R v Knape [1965] VR 469
R v Waring (No 2) [1972] Qd R 263
R v Weaver [1968] 1 QB 353
Stevenson v The Queen, unreported; CCA SCt of WA; Library No 960039; 2 January 1996

KENNEDY J: The appellant was presented in the Supreme Court on an indictment containing two counts of armed robbery in company and one count of stealing a motor vehicle. After a two day trial, the jury found the appellant guilty of each of the offences.
Although the matters complained of by the appellant are rightly said to be questions of law, the notice is described as a notice of application for leave to appeal against conviction. It is to be regarded as an appeal. Furthermore, the appeal is said to be against the appellant "having been convicted of the offence of armed robbery in company", the sentence being specified in the notice as one of 7 years' imprisonment. That was the sentence imposed in respect of the second count in the indictment, which charged an armed robbery in company. The third count, charging a second armed robbery in company, attracted a sentence of 1 year's imprisonment. The first count, charging the stealing of a motor vehicle, which attracted a sentence of 4‑1/2 years, is not referred to in the notice of application for leave to appeal against conviction. I proceed on the basis that the appeal is against each of the three convictions. That was the assumption on which the appeal was argued.
The grounds of appeal are that the learned trial Judge erred in
(a)not discharging the jury following a line of questioning by the prosecutor which suggested that the appellant was part of a group of criminals at Casuarina Prison who conspired together to provide false alibi evidence in their respective trials;
(b)the questioning suggested not only an organised conspiracy to pervert the course of justice by fabricating alibi evidence, it also suggested that the appellant had associations with other persons charged with and convicted of armed robbery offences;
(c)by putting to the appellant that the alibi evidence given at a trial of his associates had…

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 Harvey v The Queen

Details

AGLC: Harvey v The Queen [1999] WASCA 51
Case: [1999] WASCA 51
Decision Date: 15 JUNE 1999

CaseChat Overview and Summary

The case of Harvey v The Queen was heard in the High Court of Australia. The appellant, Harvey, was convicted of murder and appealed against his conviction on the basis that prejudicial material was admitted during the trial. The material in question was deemed to be highly prejudicial and potentially capable of influencing the jury against the appellant. The appellant submitted that the prejudicial nature of the evidence was not sufficiently mitigated by the trial judge's directions to the jury. The respondent, The Queen, argued that the trial judge's directions were sufficient to cure any potential prejudice.

The legal issues before the court were whether the prejudicial material admitted was of such a nature that it could not be cured by the trial judge's directions, and whether the admission of this material was a ground for a new trial. The court had to consider the extent to which the prejudicial material may have influenced the jury's decision, and whether the trial judge's directions were sufficient to address any potential prejudice. The court also had to consider the principles governing the admission of prejudicial evidence and the circumstances in which a new trial may be ordered.

The court held that the prejudicial material was of such a nature that it could not be cured by the trial judge's directions. The court found that the trial judge's directions were insufficient to address the potential prejudice caused by the material. The court held that the admission of this material was a ground for a new trial. The court found that the prejudicial material had the potential to influence the jury's decision and that the trial judge's directions were insufficient to mitigate this risk. The court held that the admission of this material was a substantial and significant irregularity that called into question the fairness of the trial.

The final orders of the court were that the conviction of the appellant be quashed, and that a new trial be ordered. The court held that the prejudicial material admitted during the trial was of such a nature that it could not be cured by the trial judge's directions, and that the admission of this material was a ground for a new trial. The court found that the prejudicial material had the potential to influence the jury's decision and that the trial judge's directions were insufficient to mitigate this risk. The court held that the admission of this material was a substantial and significant irregularity that called into question the fairness of the trial. The court ordered a new trial to ensure that the appellant received a fair trial.

Orders