JH v R

Case [2017] NSWCCA 22 3 March 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: JH v R [2017] NSWCCA 22
Hearing dates: 17 October 2016
Date of orders: 03 March 2017
Decision date: 03 March 2017
Before: Hoeben CJ at CL at [1]
Davies J at [1]
Bellew J at [1]
Decision:
(1)   On the conviction appeal:
(a)   Leave to appeal granted.
(b)   Appeal dismissed.
(2)   On the sentence appeal:
(a)   Leave to appeal granted.
(b)   Appeal dismissed.
Catchwords:
CRIMINAL LAW – manslaughter – unlawful and dangerous act – appeal against conviction – applicant in a group who bashed and kicked victim – whether verdict was unreasonable – reliability of identification evidence – whether sufficient evidence of motive – whether miscarriage of justice by incompetence of trial counsel – whether other evidence should have been led to detract from Crown case on motive – whether evidence should have been led of a second attack not involving applicant – whether applicant properly advised of his right to give evidence – whether miscarriage of justice by prosecutor’s remarks to jury
EVIDENCE – application to lead new evidence on appeal – whether new evidence was fresh evidence – whether evidence of sufficient cogency that innocence is shown or to give rise to a reasonable doubt – whether miscarriage of justice where evidence not led
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Alseedi v R [2009] NSWCCA 185
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Field v R [2015] NSWCCA 332
Kees Langelaar v R [2016] NSWCCA 143
Lane v R [2013] NSWCCA 317; 241 A Crim R 321
MG v R; AE v R [2016] NSWCCA 228
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Birks (1990) 19 NSWLR 677
R v Gordon (1994) 71 A Crim R 459
R v Hillier (2007) 228 CLR 618; [2007] HCA 13
R v LLM [2005] NSWCCA 302
The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581
Category: Principal judgment
Parties: JH (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Coady (Applicant)
M Cinque SC (Crown)
Solicitors:
Dr R Spence (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/190145
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2014] NSWSC 1878

Date of Decision:

12 December 2014

Before:

Hall J

File Number(s):

2011/190145

Judgment OF THE COURT

The applicant, JH, was indicted on one count of murder and pleaded not guilty to that charge. The trial commenced on 25 August 2014 with a jury of 12 which was subsequently reduced to 11.
On 13 October 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.
The Crown case was that the applicant was a party to a joint…

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 JH v R

Details

AGLC: JH v R [2017] NSWCCA 22
Case: [2017] NSWCCA 22
Decision Date: 03 March 2017

CaseChat Overview and Summary

In this case, the applicant JH appealed against his conviction for manslaughter following a group assault that resulted in the death of the victim. The High Court of Australia heard the appeal, considering multiple issues concerning the fairness and correctness of the trial and conviction. The primary legal issues involved the reliability of the identification evidence against the applicant, the sufficiency of evidence regarding the motive behind the assault, and the effectiveness of the trial counsel. Additionally, the appeal questioned whether the trial court erred in not allowing certain evidence that could have potentially weakened the prosecution’s case on motive and whether the applicant was properly advised of his right to testify.

The High Court examined the evidence presented at the trial, particularly focusing on the identification of the applicant as one of the attackers. The court assessed the reliability of this evidence by considering the circumstances under which the identifications were made and the opportunity witnesses had to observe the assailants. Furthermore, the court evaluated the sufficiency of the evidence to establish a clear motive for the assault, which was critical in linking the applicant to the crime. The effectiveness of the trial counsel was also scrutinised to determine if any incompetence led to a miscarriage of justice. The court considered whether any fresh evidence, which could have been presented at trial, would have changed the outcome of the case and if the prosecutor’s remarks to the jury were prejudicial.

The High Court found that the identification evidence was sufficiently reliable, given the circumstances and the opportunity witnesses had to observe the applicant. The court held that the evidence regarding the motive was adequate, and the trial counsel’s performance did not amount to incompetence that would justify a new trial. The court concluded that the new evidence proposed on appeal was not sufficiently cogent to demonstrate the applicant's innocence or to create a reasonable doubt about his guilt. The appeal was dismissed, and the conviction and sentence were upheld.

Orders