Kutschera v The Queen - [2010] NSWCCA 150

New South Wales
Court of Criminal Appeal

CITATION: KUTSCHERA v R [2010] NSWCCA 150

HEARING DATE(S): 18 December 2009

JUDGMENT DATE:
19 July 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 2; Johnson J at 121

DECISION: Appeal dismissed

PARTIES: Michael Kutschera
Regina

FILE NUMBER(S): CCA 2007/5907003

COUNSEL: Mr S Odgers SC (Applicant)
Ms D Woodburne SC (Respondent)

SOLICITORS: Conroy Stewart Spagnolo (Applicant)
Solicitor for DPP (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/5907

LOWER COURT JUDICIAL OFFICER: Fullerton J

LOWER COURT DATE OF DECISION: 28/11/08

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2007/5907003

McCLELLAN CJ AT CL
RS HULME J
JOHNSON J

Monday, 19 July 2010

Michael KUTSCHERA v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with RS Hulme J.

2 RS HULME J: On 24 September 2008 the above named Appellant was convicted of murdering Lucas Gleeson on 21 July 2007. On 28 November 2008 Justice Fullerton sentenced the Appellant to imprisonment for a period of 26 years and 8 months including a non-parole period of 20 years both such periods commencing on 21 July 2007.

3 The Appellant appeals against only his conviction and upon one ground only, viz:-

The trial judge erred in respect of the directions given to the jury regarding Adam Newbold.

4 Reliance was placed on s165 of the Evidence Act which, so far as is presently relevant, provides:-

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence

(a) …

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(f) …

(2) If there is a jury and a party so requests, the judge is to:

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

5 The warning that her Honour gave to the jury in respect of Mr Newbold was in the following terms (as transcribed):-

“I need now to give you some directions as to how you should approach an assessment of Mr Newbold’s evidence in those circumstances. That is where he has agreed to give evidence against Mr Kutschera when the offending for which he was sentenced occurred on that same night that Mr Kutschera is charged with having murdered the deceased. It is a bit like the warning or caution that I gave you in the context of…

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 Kutschera v The Queen

Details

AGLC: Kutschera v The Queen [2010] NSWCCA 150
Case: [2010] NSWCCA 150
Decision Date: 19 July 2010

CaseChat Overview and Summary

Michael Kutschera appeals against his conviction for murder, submitting that the trial judge erred in the directions given to the jury regarding the evidence of Adam Newbold, a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. The Crown argues that the trial judge's directions were sufficient and that no further warning than that given was requested. The Court of Criminal Appeal considered the evidence and concluded that the trial judge's decision not to give a broader warning was open to her, as she was not satisfied that Newbold was criminally concerned in the events. The court found that the complaints concerning the warning were either unwarranted or did not lead to the view that the warning was inadequate. Accordingly, the appeal was dismissed.

Orders