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 countLegislation 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;
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- Case
- [2019] NSWCCA 153
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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