Jarc v The Queen - [2002] NTCCA 6

Jarc v The Queen[2002] NTCCA 6
PARTIES:ANTHONY WERNER JARC
v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 22 of 2000 (SCC 9904344)
DELIVERED:  7 June 2002
HEARING DATE:  12 March 2002
JUDGMENT OF:  MARTIN CJ, MILDREN & BAILEY JJ
CATCHWORDS:

Appeal– Criminal Law – Appeal dismissed.
Criminal Law– Evidence – Rule in Browne v Dunn.
Statutes
Evidence – s 9(3) Evidence Act NT
Evidence Act (NT)

Cases cited

Browne v Dunn (1894)referred to.
REPRESENTATION:
Counsel:
Appellant:S. Odgers and S. Cox
Respondent:  M. Carey
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:           B

Number of pages: 26

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Jarc v The Queen[2002] NTCCA …
No. CA 22 of 2000 (SCC 9904344)

BETWEEN:
ANTHONY WERNER JARC

Appellant
AND:
THE QUEEN

Respondent

CORAM: MARTIN CJ, MILDREN & BAILEY JJ
REASONS FOR JUDGMENT
(Delivered 7 June 2002)
MARTIN CJ:

I have had the benefit of a draft of the reasons for judgment of Bailey J. I agree that for the reasons given by his Honour leave to appeal be refused on ground one and that the appeal based on grounds two and three be dismissed. However, I should not be thought to necessarily agree with what his Honour has to say as to s 9(3) of the Evidence Act. Similar thoughts were expressed by Street CJ in Greciun-King (1981) 2 NSWLR 469 commencing at p 471 but it nevertheless remains a contentious issue.
Although not raised in the appellant’s written outline of submissions, counsel advanced a further argument to found a breach of the rule in Browne v Dunn (1894) 6R 67. It arose from what was said by the prosecutor in closing address which it was argued amounted to an attack upon Dr Lee’s professionalism and credibility of which he had no notice.
In examination-in-chief Dr Lee was asked whether, after taking decomposition of the deceased body into account:
“… [A]re you able to say in your opinion, that Mr Jarc’s statements to police, as to how this incident unfolded and what was done, are borne out by the forensic evidence?” And he answered:
“Yes, I think in general terms there is a close correspondence between his story and the facts that are shown during the course of the examination.”
In cross-examination the following exchange took place:
“You did indicate there was close correspondence in general terms between Mr Jarc’s story as you understand it to be and the facts that are shown during the examination? --- Yes.
What does that exactly mean, in general terms? --- Well, in – well basically just that. In the sense that the story that was put to me yesterday indicating that the incident had commenced in the lounge room; had then moved from the lounge room to possibly the bathroom, and as I’ve said, I,…

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 Jarc v The Queen

Details

AGLC: Jarc v The Queen [2002] NTCCA 6
Case: [2002] NTCCA 6
Decision Date: 7 June 2002

CaseChat Overview and Summary

The appeal concerned Jarc (the appellant) and The Queen (the respondent), brought before the Full Court of the Supreme Court of Western Australia. The central dispute revolved around the admissibility of certain evidence during the appellant's trial.

The primary legal issue before the Full Court was whether the trial judge erred in admitting evidence that had not been put to the defence witnesses during cross-examination, thereby potentially breaching the rule in *Browne v Dunn*. This rule generally requires that if a party intends to adduce evidence contradicting evidence given by an opponent's witness, that intention must be made known to the witness during cross-examination.

The Court considered the application of the *Browne v Dunn* rule in the context of the evidence presented at trial. It was held that while the rule is a valuable safeguard, its strict application is not always mandatory, particularly where the evidence in question does not directly contradict the witness's testimony or where the witness has had a sufficient opportunity to address the relevant matters. The Court found that in this instance, the admission of the evidence did not occasion a miscarriage of justice.

Consequently, the appeal was dismissed.

Orders