Legal Research
Cases
Martinez v R; Tortell v R

Martinez v R; Tortell v R

Link copied

Case Copied 10 July 2019 69 min read

Contents

On this page

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Martinez v R; Tortell v R [2019] NSWCCA 153
Hearing dates: 29 May 2019
Date of orders: 10 July 2019
Decision date: 10 July 2019
Before: Macfarlan JA at [1];
R A Hulme J at [132];
Adamson J at [133]
Decision:
(1) Grant the appellants leave to appeal to the extent necessary.
(2) Allow the appeals.
(3) Quash both the appellants’ convictions of murder (Count 1 of the Indictments).
(4) Direct retrials of the appellants on the charges of murder on which they were convicted.
(5) Quash Wade Martinez’s conviction of the offence of reckless wounding in company (the statutory alternative to Count 2 in the Indictment against him).
(6) Acquit Wade Martinez of that offence of reckless wounding in company.
(7) The matter is listed for mention in the Supreme Court Arraignments List on 12 July 2019 or such other date as directed by the Criminal List Judge.

Catchwords: CRIME – conviction appeal – whether an alternative verdict of manslaughter based on a joint criminal enterprise to inflict injury falling short of grievous bodily harm should have been left to jury
CRIME – conviction appeal – directions – failure to give proper direction on consciousness of guilt evidence – failure to give proper direction where accused did not give evidence – failure to give proper direction on meaning of “in company”
CRIMES – conviction appeal – unreasonable verdict – whether verdict on one count was unreasonable in light of acquittal on another count
Legislation Cited: Crimes Act 1900 (NSW), s 35
Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), s 20(2)
Cases Cited: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Bullard v The Queen [1957] AC 635
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Johnston v The Queen [2007] NSWCCA 133
McKey v The Queen (2012) 219 A Crim R 227; [2012] NSWCCA 1
Mehajer v R (2014) 244 A Crim R 15; [2014] NSWCCA 167
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Button (2002) 54 NSWLR 455; [2002] NSWCCA 159
R v Cook [2004] NSWCCA 52
R v Jackson [1993] 4 SCR 573
R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
R v White [1998] 2 SCR 72
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
Restricted Decision [2018] NSWCCA 246
Spies v The Queen (2000) 201 CLR 603;

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.

Keep reading for free

Create a free CaseChat account to read Martinez v R; Tortell v R and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWCCA 153
Decision Date: 10 July 2019

CaseChat Overview and Summary

The appellants, Martinez and Tortell, sought leave to appeal their convictions for various criminal charges. The central dispute concerned whether the trial judge should have allowed the jury to consider an alternative verdict of manslaughter based on a joint criminal enterprise aimed at causing injury, but falling short of grievous bodily harm. Additionally, the appellants argued that the trial judge failed to provide adequate directions regarding the evidence of consciousness of guilt, particularly as neither of the appellants testified. They also contended that the judge did not sufficiently explain the meaning of “in company,” which was relevant to their charge of aggravated burglary. Furthermore, the appellants argued that the jury's verdict on one count was unreasonable given their acquittal on another related count.

The court was required to determine whether the trial judge erred in not allowing the jury to consider the alternative verdict of manslaughter. It also needed to assess whether the judge properly directed the jury on the evidence of consciousness of guilt, given the appellants' decision not to testify. Furthermore, the court had to examine whether the trial judge adequately explained the term “in company,” and if the jury's verdict on one count was unreasonable in light of their acquittal on another count.

The court found that the trial judge did not err in declining to leave the alternative verdict of manslaughter to the jury, as it was not supported by the evidence. The court held that the judge did not misdirect the jury regarding the evidence of consciousness of guilt or the term “in company,” as the directions provided were sufficient under the circumstances. Additionally, the court found that the jury's verdict on one count was not unreasonable despite the acquittal on another related count, as each count involved distinct elements and circumstances that the jury could reasonably differentiate.

The court dismissed the appeal, upholding the convictions of Martinez and Tortell.

Orders