Narkle v The Queen

Case [2003] WASCA 233

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   NARKLE -v- THE QUEEN [2003] WASCA 233

CORAM:   MURRAY J

STEYTLER J
PARKER J

HEARD:   22 SEPTEMBER 2003

DELIVERED          :   22 SEPTEMBER 2003

PUBLISHED           :  3 OCTOBER 2003

FILE NO/S:   CCA 23 of 2002

BETWEEN:   GARY MICHAEL NARKLE

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Where trial Judge failed to give proper direction as to lies - Turns on own facts

Legislation:

Criminal Code, s 689(1)

Result:

Leave to appeal granted
Appeal allowed
Convictions quashed
Retrial ordered

Category:    B

Representation:

Counsel:

Applicant:     Mr R W Richardson

Respondent:     Mr D Dempster

Solicitors:

Applicant:     Gunning Young

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Edwards v The Queen (1993) 178 CLR 193

Case(s) also cited:

Dhanhoa v The Queen (2003) 77 ALJR 1433

Domican v The Queen (1992) 173 CLR 555

Festa v The Queen (2001) 208 CLR 593

Glennon v The Queen (1994) 179 CLR 1

Latham v The Queen [2000] WASCA 57

Leary v The Queen [1975] WAR 133

Liberato v The Queen (1985) 159 CLR 507

Mraz v The Queen (1955) 93 CLR 493

Murray v The Queen (2002) 76 ALJR 899

Osland v The Queen (1998) 197 CLR 316

R v Beserick (1993) 30 NSWLR 510

R v Schmahl [1965] VR 745

Simic v The Queen (1980) 144 CLR 319

Sreckovic v The Queen [1973] WAR 85

Stack v The Queen [2002] WASCA 338

Zoneff v The Queen (2000) 200 CLR 234

  1. JUDGMENT OF THE COURT:  The applicant was convicted, after a trial by jury, of one count of deprivation of liberty, three counts of sexual penetration without consent, one count of attempted sexual penetration without consent, three counts of sexual penetration without consent causing bodily harm and one count of indecent assault.  He sought leave to appeal against these convictions and, at the hearing of that application, we acceded to it, allowed the appeal, quashed the convictions and ordered a retrial, each of those steps having been taken with the concurrence of the Crown.  These are our reasons for doing so.

  2. The offences were said to have been committed during the night of 11 October 1999.  There were, at the trial, two competing versions of what took place on that night.  The complainant's evidence was that, in the evening, she met the applicant at a telephone box in Armadale.  The applicant asked her if she could give him a lift to Thornlie.  She told him that although she lived around that area, she was on her way to Roleystone.  The applicant thereupon asked her for a lift to Roleystone.  She agreed to give him a lift.  After arriving in Roleystone she dropped the applicant off at a church near the Roleystone Theatre on Croyden Road, to which she was going in order to attend rehearsals which were to take place there.  After getting out of the car, the…

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Narkle v The Queen [2003] WASCA 233
Case
[2003] WASCA 233
Decision Date

CaseChat Overview and Summary

In the case of Narkle v The Queen, the applicant was convicted of various sexual offences and sought leave to appeal against those convictions. The matter came before the court which granted the leave, allowed the appeal, quashed the convictions, and ordered a retrial. The offences were alleged to have occurred on the night of 11 October 1999, with the complainant providing one version of events and the applicant providing a differing account. The complainant testified that she had given the applicant a lift to Roleystone, after which she encountered him again and gave him another lift, during which he committed the offences. The applicant, however, claimed that he had been picked up by the complainant near a telephone box in Armadale and that she had taken him to Roleystone to attend rehearsals at a theatre. He said that after dropping him off near a church, he waited at a bus stop to see if the rehearsals had ended before returning to the church, where the complainant picked him up.

The court had to determine whether the trial judge failed to give proper directions to the jury concerning the lies in the case. This was a crucial issue, as the outcome of the case turned on the credibility of the parties' accounts. The court had to consider whether the trial judge adequately guided the jury on how to assess the truthfulness of the evidence presented by both the complainant and the applicant. The proper evaluation of the credibility of witnesses and the direction of the jury are fundamental aspects of a fair trial. If the trial judge failed to provide appropriate instructions, it could potentially lead to a miscarriage of justice, as the jury might not have been properly equipped to make an informed decision based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

STEYTLER J
JUDGMENT OF THE COURT: The applicant was convicted, after a trial by jury, of one count of deprivation of liberty, three counts of sexual penetration without consent, one count of attempted sexual penetration without consent, three counts of sexual penetration without consent causing bodily harm and one count of indecent assault. He sought leave to appeal against these convictions and, at the hearing of that application, we acceded to it, allowed the appeal, quashed the convictions and ordered a retrial, each of those steps having been taken with the concurrence of the Crown. These are our reasons for doing so. The offences were said to have been committed during the night of 11 October 1999. There were, at the trial, two competing versions of what took place on that night. The complainant's evidence was that, in the evening, she met the applicant at a telephone box in Armadale. The applicant asked her if she could give him a lift to Thornlie. She told him that although she lived around that area, she was on her way to Roleystone. The applicant thereupon asked her for a lift to Roleystone. She agreed to give him a lift. After arriving in Roleystone she dropped the applicant off at a church near the Roleystone Theatre on Croyden Road, to which she was going in order to attend rehearsals which were to take place there. After getting out of the car, the applicant asked the complainant if she would give him a lift home if she saw him again. She said that she would. On her way home from Roleystone the complainant saw the applicant waiting at a bus stop. Because it was late and she thought that there may be no more buses, she decided to give him a lift to Thornlie. However, the applicant asked her to make a number of detours and she did so. He eventually directed her to Mundaring Weir Road. She drove along that road for a while, until she came to an isolated area. She became nervous and turned back towards Perth. The applicant said that he needed to relieve himself and asked her to pull the car over. She did so and, on her evidence, the applicant then committed the various offences of which he was convicted by the jury. The applicant's version of events was somewhat different. He said that, after he and the complainant struck up a conversation at or near the telephone box in Armadale, the complainant offered to give him a lift to Langford, where he could obtain some drugs for the two of them to share. However, she said that she had first to go to Roleystone. She drove there together with the applicant. When they arrived in Roleystone, the complainant said that she would drop the applicant off at the church and then pick him up again after rehearsals at the Roleystone Theatre had ended. She dropped him off near the church, where the applicant involved himself in some activity then taking place there. He said that, at one point, he walked to a nearby bus stop in order to see whether or not there were still cars at the Theatre, because he wanted to know whether or not the rehearsals had ended. He said that he did not sit down at the bus stop at any stage and was only there for a minute or two before returning to the church, where the complainant eventually picked him up.

Ratio Decidendi

Legal Principle Established

Established by: STEYTLER J

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