HOLBREY -v- THE QUEEN [2002] WASCA 147

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 147
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:176/2001	Heard:	20 MAY 2002
Coram:	MURRAY J PARKER J MILLER J	Delivered:	7/06/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	BRIAN HOLBREY THE QUEEN
Catchwords:	Criminal law and procedure Evidence of videotaped interview by police with accused not led as part of Crown case Crown prosecutor cross-examined accused alleging that he told lies during interview Crown prosecutor previously advised would cross-examine on "inconsistencies" Whether process unfair Whether jury should have been discharged
Legislation:	Nil
Case References:	Edwards v The Queen (1993) 178 CLR 193 Zoneff v The Queen (2000) 200 CLR 234 Miles v The Queen [2000] WASCA 364 R v Rugari (2001) 122 A Crim R 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HOLBREY -v- THE QUEEN [2002] WASCA 147 CORAM : MURRAY J

PARKER J

MILLER J

HEARD : 20 MAY 2002 DELIVERED : 7 JUNE 2002 FILE NO/S : CCA 176 of 2001 BETWEEN : BRIAN HOLBREY

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Evidence of videotaped interview by police with accused not led as part of Crown case - Crown prosecutor cross-examined accused alleging that he told lies during interview - Crown prosecutor previously advised would cross-examine on "inconsistencies" - Whether process unfair - Whether jury should have been discharged

Legislation:

Nil

(Page 2)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicant : Ms C S Amsden

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Director of Legal Aid

Respondent : State Director of Public Prosecutions

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

Edwards v The Queen (1993) 178 CLR 193
Zoneff v The Queen (2000) 200 CLR 234

Case(s) also cited:

Miles v The Queen [2000] WASCA 364
R v Rugari (2001) 122 A Crim R 1

(Page 3)

1 MURRAY J: On 22 and 23 November 2001, the applicant was tried by Deane DCJ and a jury on an indictment charging him with three offences of threats to kill three different people and a charge of assault occasioning bodily harm committed upon one of those people. All the offences were alleged to have been committed at the same time and place on 27 November 2000. The applicant was convicted and sentenced to an aggregate term of 15 months imprisonment, the service of which was suspended for 24 months.

2 He seeks leave to appeal against the convictions which he asks to be quashed. He seeks a retrial. There is one ground of appeal. It is:

"The video taped record of interview would not have been admissible and a miscarriage of justice occurred during the trial because of the manner in which the Crown Prosecutor led evidence from it.

PARTICULARS

(a) The Crown Prosecutor did not introduce the Applicant's…

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 Holbrey v The Queen

Details

AGLC: Holbrey v The Queen [2002] WASCA 147
Case: [2002] WASCA 147
Decision Date: 7 JUNE 2002

CaseChat Overview and Summary

Holbrey v The Queen is a case concerning the admissibility of evidence in a criminal trial. The accused, Holbrey, was prosecuted for drug trafficking. The dispute arose when the Crown prosecutor cross-examined Holbrey on statements he made during a videotaped police interview, which was not led as part of the Crown's case. The issue was whether the process was fair and whether the jury should have been discharged due to the manner in which the prosecutor handled the questioning.

The legal issues the court had to decide involved the principles of fairness in criminal trials, particularly in relation to the admissibility of evidence and the conduct of the prosecutor during cross-examination. The court examined whether the prosecutor's actions breached the principles of fairness and if the jury was unduly influenced by the cross-examination on statements not presented as part of the Crown's evidence. The court also considered whether the accused's right to a fair trial was compromised by the prosecutor's conduct.

The court found that the prosecutor's cross-examination did not render the trial unfair. The judge had properly managed the trial and the jury was adequately directed on the limited purpose of the cross-examination. The court held that the prosecutor's conduct was within the bounds of acceptable practice and did not prejudice the accused to the extent that the trial was unfair. Therefore, the appeal was dismissed, and the conviction was upheld. The court did not consider it necessary to discharge the jury.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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