Morgan v The Queen - [2016] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Morgan v R [2016] NSWCCA 25
Hearing dates: 2 February 2016
Decision date: 26 February 2016
Before: Simpson JA at [1]; Johnson J at [45]; McCallum J at [46]
Decision:
Appeal against conviction dismissed.

Catchwords:
APPEAL – conviction – voice identification evidence – admissibility of opinion evidence – Evidence Act 1995 (NSW), ss 76, 79 – whether ad hoc expert evidence within s 79 – no objection raised at trial regarding characterisation of opinion as ad hoc expert evidence – no determination made by trial judge – no error found
APPEAL – conviction – Criminal Appeal Rules (NSW), r 4 – no objection taken at trial – no basis for the grant of leave – appeal against conviction dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5 and 6
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 76, 79
Cases Cited: Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
Honeysett v The Queen [2014] HCA 29; 253 CLR 122
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Morgan v R [2011] NSWCCA 257; 215 A Crim R 33
R v Irani [2008] NSWCCA 217; 188 A Crim R 125
R v Leung and Wong [1999] NSWCCA 287; 47 NSWLR 405
R v Madigan [2005] NSWCCA 170
Category: Principal judgment
Parties: Raymond George Morgan (Appellant)
Regina (Respondent)
Representation:
Counsel:
J Stratton SC/M Curry (Appellant)
N J Adams (Respondent)
Solicitors:
Chayana Miers (Appellant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/226933
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

07 March 2014

Before:

Huggett DCJ

File Number(s):

2012/226933

Judgment

SIMPSON JA: On 28 October 2013 the appellant was arraigned in the District Court on an indictment that charged eight offences (of which the second was pleaded as alternative to the first). The first and third counts were of attempted break, enter and steal, in each case of the same bank premises at Alexandria, and alleged to have been committed, respectively, in the early hours of 11 July 2012, and later in the same day. The jury found the appellant guilty on each of these counts, and was therefore not asked to return a verdict on the second count, the alternative to Count 1.
The fourth count was of break, enter and steal, of a hardware store at Annandale, alleged to have been committed on 19 July 2012; the fifth was also of break, enter and steal, of a machinery shop at Drummoyne, allegedly committed later that day. The sixth count was of robbery in company, of a Mr Jack Rabinowitz, alleged to have been committed at Double Bay the following day, 20 July 2012. The jury convicted the appellant of each of these counts.
The seventh count was of assault with intent to steal, and the eighth of possession of an offensive weapon with…

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 Morgan v The Queen

Details

AGLC: Morgan v The Queen [2016] NSWCCA 25
Case: [2016] NSWCCA 25
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the matter of Morgan versus The Queen, the appellant was convicted of a crime and appealed to the court, challenging the admissibility of certain voice identification evidence provided by an expert witness. The court of appeal was tasked with determining whether the evidence was appropriately admitted under the provisions of the Evidence Act 1995 (NSW) and whether the trial judge correctly handled the characterisation of this evidence as ad hoc expert evidence. The appeal hinged on the absence of any objection from the appellant at the trial regarding the characterisation of the opinion as ad hoc expert evidence and whether the trial judge made a determination on this issue.

The court identified the central legal issue as whether the trial judge erred in admitting the opinion evidence without characterising it as ad hoc expert evidence, as required by section 79 of the Evidence Act 1995 (NSW). The appellant argued that the evidence should not have been admitted without meeting the criteria set forth in the statute. The court examined whether the absence of objection at the trial precluded the appellant from raising the issue on appeal and if the trial judge's failure to determine the characterisation of the evidence constituted a legal error.

The court found that the appellant did not object to the characterisation of the evidence as ad hoc expert evidence during the trial. The court concluded that the absence of such an objection at the trial precluded the appellant from raising the issue on appeal, as per the Criminal Appeal Rules (NSW), rule 4. Additionally, the court noted that the trial judge did not make any determination regarding the characterisation of the evidence, but this lack of determination did not constitute an error, given the absence of an objection. The court held that there was no basis to grant leave to appeal, and the appeal against the conviction was dismissed.

In summary, the court dismissed the appeal against conviction, finding that the appellant's failure to object to the characterisation of the evidence at the trial precluded them from raising the issue on appeal. The court further found that the trial judge's failure to determine the characterisation of the evidence did not constitute an error. The appeal was therefore dismissed, and the conviction was upheld.

Orders