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JG v Regina

JG v Regina

Case [2011] NSWCCA 198 12 September 2011

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Court of Criminal Appeal

New South Wales

Case Title: JG v Regina

Medium Neutral Citation: [2011] NSWCCA 198

Hearing Date(s): 29 August 2011

Decision Date: 12 September 2011

Jurisdiction:

Before:
Giles JA, Hall J, Fullerton J

Decision:
Leave to appeal refused.

Catchwords:
CRIMINAL APPEAL - Section 5F Criminal Appeal Act 1912 - charge of murder - dismissal of application that evidence be excluded - and that proceedings be stayed - no right of appeal against ruling on evidence - should not be permitted to contest ruling in relation to appeal against refusal of stay - no arguable case of error in refusing stay - leave to appeal refused.

Legislation Cited:
Criminal Appeal Act 1912
Criminal Procedure Act 1986

Cases Cited:
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222;
Dupas v The Queen [2010] HCA 20;
Gedeon v R [2009] NSWCCA 278;
Jago v The District Court of New South Wales (1989) 169 CLR 23;
JG v R (No 2) (Buddin J, 6 May 2011, unreported;
R v Glennon (1992) 173 CLR 592;
R v Groves (CCA, 2 April 1990, unreported);
R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299;
R v Littler [2001] NSWCA 173; (2001) 120 A Crim R 512;
R v Marchione [2002] NSWCCA 131; (2002) 128 A Crim R 574;
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228;
R v Steffan (1990) 30 NSWLR 633.

Texts Cited:

Category: Principal judgment

Parties:
JG - Applicant
Crown - Respondent

Representation

- Counsel:
D Dalton SC - Applicant
P Barrett - Crown

- Solicitors:
Siobhan Mullany, Legal Aid NSW - Applicant
S Kavanagh, Public Prosecutions - Crown

File number(s): CCA 2009/779

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:
See s 15A Children (Criminal Proceedings) Act1987.

Judgment

THE COURT : The applicant sought to appeal, pursuant to s 5F(3) of the Criminal Appeal Act 1912, against the dismissal of a notice of motion in which he claimed orders that the evidence of a witness be excluded and the proceedings be permanently stayed. Section 5F(3) relevantly entitled him to appeal against an interlocutory judgment or order if this Court gave leave to appeal.

At the conclusion of the hearing we ordered that leave to appeal be refused, with reasons to be given later. These are our reasons for refusing leave to appeal.

Circumstances

On 6 February 2009 the applicant was charged by way of an ex officio indictment with having on or about 12 January 2002 murdered his wife CG. CG disappeared on 12 or 13 January 2002. No remains have been found, but for present purposes it may be accepted that CG is no longer alive.

The trial was listed to commence in August 2009 before Buddin J. Before the jury was empanelled, counsel for the applicant foreshadowed objection to "the entirety of the evidence of" CV. CV was…

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 JG v Regina

Details

AGLC: JG v Regina [2011] NSWCCA 198
Case: [2011] NSWCCA 198
Decision Date: 12 September 2011

CaseChat Overview and Summary

The appeal in JG v Regina was brought by the defendant, JG, against a ruling made during his trial for murder. The defendant contested the admissibility of certain evidence and sought a stay of proceedings. The matter was heard in the Court of Appeal. The legal issues at hand involved the defendant's right to appeal against the ruling that evidence be admitted and the refusal to stay the proceedings. The court examined whether the defendant had the right to appeal against the ruling on the admissibility of evidence and whether it was permissible to contest the ruling on the refusal to stay the proceedings.

The Court of Appeal held that the defendant did not have the right to appeal against the ruling on the admissibility of evidence. The court further determined that the defendant could not contest the ruling on the refusal to stay the proceedings because there was no arguable case of error in the refusal. The court found that the trial judge had correctly exercised their discretion in refusing the stay and that the decision did not amount to an error of law. As a result, the defendant's application for leave to appeal was refused.

The court's decision was based on the statutory provisions of the Criminal Appeal Act 1912 and the principles of appeal against rulings on evidence and stays of proceedings. The court found that the defendant had not established an arguable case of error in the trial judge's decision to refuse the stay. Consequently, the appeal was dismissed, and the defendant's application to exclude evidence and for a stay of proceedings was upheld.

Orders