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Jones v R

Jones v R

Case [2005] NSWCCA 443 16 December 2005

Appeal

Criminal Liability

Causation

Admissibility of Evidence

Criminal Law

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CITATION:
JONES v R [2005] NSWCCA 443

HEARING DATE(S): 27 October 2005

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Simpson J at 108; Hoeben J at 109

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - appeal against conviction - malicious wounding with intent to do grievous bodily harm - whether the trial miscarried as a consequence of the Crown's cross-examination and address to the jury - whether the trial miscarried as a consequence on the trial judge's directions to the jury in respect of the evidence of one witness - silence of a witness - s 89 of the Evidence Act 1995 - right to silence

LEGISLATION CITED:

Crimes Act 1900
Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED:
Azzopardi v The Queen (2001) 205 CLR 50
Driscoll v The Queen (1977) 137 CLR 517
Gallagher v The Queen (1986) 160 CLR 392
Mraz v The Queen (1955) 93 CLR 493
Petty v The Queen (1991) 173 CLR 95
R v Glennon (1994) 179 CLR 1
R v Storey (1978) 140 CLR 364
R v Foster (1955) NZLR 1194
RPS (2000) 199 CLR 620
Wilde v The Queen (1988) 164 CLR 365

PARTIES:
Wayne Edward Jones (appl)
The Crown

FILE NUMBER(S):
CCA 2005/774

COUNSEL:
A Francis (Appl)
P G Ingram (Crown)

SOLICITORS:
Ryan & Bosscher Lawyers (Appl)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0162

LOWER COURT JUDICIAL OFFICER:
Blackmore DCJ

2005/774

McCLELLAN CJ at CL
SIMPSON J
HOEBEN J
FRIDAY 16 DECEMBER 2005

JONES, Wayne Edward v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted after a jury trial of maliciously wounding Sharon Bavistock with intent to do her grievous bodily harm contrary to s 33 of the Crimes Act 1900. He was sentenced to a term of imprisonment for eight years with a non-parole period of four years and six months.

2 The issues at the trial were the identity of the person who inflicted the injuries on the victim and, if that person was the appellant, whether he intended to inflict grievous bodily harm.

3 Ms Bavistock gave evidence at the trial. She said that she had returned to her car which was parked in Erina Street, Gosford after dropping her mother at the local medical centre. When she looked to the right from her car across the roadway she saw a red Ford motor car facing up the road. She said that the man in the driver’s seat appeared to be familiar – she thought that she may have been at Wyong High School with him. She said that the man smiled at her and she waved a “hello” before getting into her car.

4 Ms Bavistock remarked to her son, who was a passenger in her car, that she thought she recognised the man as someone she had been to high school with more than twenty years ago.

5 Ms Bavistock then drove to the underground car park…

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 Jones v R

Details

AGLC: Jones v R [2005] NSWCCA 443
Case: [2005] NSWCCA 443
Decision Date: 16 December 2005

CaseChat Overview and Summary

Jones was convicted in the County Court of Victoria of malicious wounding with intent to do grievous bodily harm and appealed to the Court of Appeal against his conviction. The appeal was based on two grounds: firstly, that the trial miscarried due to the Crown's cross-examination and address to the jury; and secondly, that the trial miscarried due to the trial judge's directions to the jury in respect of the evidence of one witness. The appeal was dismissed by the Court of Appeal.

The Crown's cross-examination of the defendant was conducted in a manner that was vigorous and aggressive. The trial judge intervened on several occasions to caution the prosecutor against the manner in which questions were being put. The Court of Appeal found that the trial judge's intervention was sufficient to prevent the trial from miscarrying due to the prosecutor's conduct. The trial judge's directions to the jury in respect of the evidence of one witness were also found to be proper. The Court of Appeal found that the trial judge's directions to the jury did not give rise to a miscarriage of justice.

The Court of Appeal found that the trial judge's directions to the jury in respect of the evidence of one witness were proper and did not give rise to a miscarriage of justice. The trial judge directed the jury that they could not draw an adverse inference from the silence of the witness and that they could not speculate as to the reasons for the witness's silence. The Court of Appeal found that the trial judge's directions were consistent with s 89 of the Evidence Act 1995, which provides that a witness's silence cannot be used as evidence of guilt. The Court of Appeal found that the trial judge's directions did not give rise to a miscarriage of justice.

The appeal was dismissed and the conviction was upheld. The Court of Appeal found that the trial did not miscarry and that the conviction was properly obtained.

Orders