Johnston v The Queen - [2007] NSWCCA 133

New South Wales
Court of Criminal Appeal

CITATION: JOHNSTON v R [2007] NSWCCA 133

HEARING DATE(S): 14 March 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 19; Hislop J at 20

EX TEMPORE JUDGMENT DATE: 14 March 2007

DECISION: 1. Appeal upheld; 2. Conviction quashed; 3. New trial ordered.

CATCHWORDS: Appeal against conviction - robbery inflicting grievous bodily harm - appellant did not give evidence at trial - no directions given about the right to silence - omission not identified by prosecution or defence counsel - Azzopardi direction required

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Azzopardi v The Queen (2001) 205 CLR 50
R v Bradley Scott Burns (2003) 137 A Crim R 557
R v Dodd (2002) NSWCCA 418; 135 A Crim R 32
R v Sabbah (2004) NSWCCA 28
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346

PARTIES: Allen William Johnston (Appl)
The Crown

FILE NUMBER(S): CCA 2006/2618

COUNSEL: A Cook (Appl)
W Dawe QC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0256

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 18 May 2006

2006/2618

McCLELLAN CJ at CL
HULME J
HISLOP J
WEDNESDAY 14 MARCH 2007

JOHNSTON, Allen William v R

Judgment

1 McCLELLAN CJ at CL: The appellant, Allen William Johnston was convicted following a trial in the District Court at Wollongong of the following offence:

“On 15 March 2002 at Warrawong in the State of New South Wales being in company with persons unknown, robbed Tony Trani of $550 in cash, a necklace, a watch, ring, bracelet and mobile phone, the property of Tony Trani and that the said Allen Johnston at the time of the robbery, inflicted grievous bodily harm upon Tony Trani.”

2 The offence under s 98 Crimes Act 1900 carries a maximum penalty of 25 years imprisonment. The appellant was sentenced to a non-prole period of 2 ½ years and a total term of 5 years. The appellant will be eligible to apply for release to parole on 17 November 2008.

3 The appellant appeals his conviction. There is only one ground of appeal which is:

“The absence in the trial of any direction to the jury concerning the fact that the appellant did not give evidence caused the trial to miscarry.”

Evidence at the trial

4 Mr Trani lived at Warrawong in a unit above a shop owned by his parents. On the evening of 14 March 2002 he spent some time drinking with the appellant and others at the Illawarra Yacht Club. Mr Trani had some previous acquaintance with the appellant and gave evidence that he had previously given him a job.

5 Mr Trani and the appellant left the yacht club at about 11 pm and went to the home of a mutual friend Dianne Mills. The appellant had been living at Ms Mills house for some months. After consuming further alcoholic…

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 Johnston v The Queen

Details

AGLC: Johnston v The Queen [2007] NSWCCA 133
Case: [2007] NSWCCA 133
Decision Date: 14 March 2007

CaseChat Overview and Summary

The appellant, Johnston, appealed his conviction for robbery inflicting grievous bodily harm. The case was heard in the High Court of Australia. The incident in question occurred when the appellant and an accomplice robbed a man and inflicted grievous bodily harm upon him. The appellant did not give evidence at the trial and no directions were given about his right to silence. This omission was not identified by either the prosecution or defence counsel.

The legal issue before the court was whether the trial judge was required to give a direction about the appellant's right to silence in the circumstances of the case. The appellant argued that the omission to give such a direction constituted a failure to observe a requirement of procedural fairness and resulted in a miscarriage of justice. The court considered whether the failure to give the direction was a substantial procedural defect that affected the fairness of the trial. The court found that the trial judge was required to give a direction about the right to silence in this case, and that the omission constituted a substantial procedural defect.

The court concluded that the omission to give a direction about the right to silence was a substantial procedural defect that affected the fairness of the trial. The court held that the omission constituted a failure to observe a requirement of procedural fairness and resulted in a miscarriage of justice. The court quashed the conviction and ordered a retrial. The court also noted that the prosecution should have raised the issue of the omission to give a direction about the right to silence, and that the defence counsel should have objected to the absence of such a direction.

Orders