Criminal law and procedure - Evidence of bad character of applicant led inadvertently - Trial Judge declined to discharge jury - Direction given that evidence was irrelevant - Whether a miscarriage of justice

Legislation:

Nil

Result:

Application for leave to appeal granted
Appeal allowed
Conviction quashed
New trial ordered

Representation:

Counsel:

Applicant: Mr O P Holdenson QC
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Melasecca Zayler
Respondent: State Director of Public Prosecutions

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

Crofts v The Queen (1996) 186 CLR 427
Hinch v Attorney‑General (Vic) (1987) 164 CLR 15
R v Glennon (1992) 173 CLR 592
Wedd v The Queen [2000] WASCA 273

Case(s) also cited:

Glennon v The Queen (1994) 179 CLR 1
Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996
Harvey v The Queen [1999] WASCA 51
Jones v Dunkel (1959) 101 CLR 298
M v The Queen (1994) 181 CLR 487
Maric v The Queen (1978) 52 ALJR 631
Melbourne v R (1999) 164 ALR 465
R v Booth [1983] 1 VR 39
R v Knape [1965] VR 469
R v Young, unreported; CCA SCt of NSW; No 60653 of 94; 31 October 1995
RPS v The Queen (2000) 74 ALJR 449
Stevenson v The Queen, unreported; CCA SCt of WA; Library No 960039; 29 January 1996
Webb v The Queen (1994) 181 CLR 41

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. For those reasons, I agree that leave to appeal should be granted, the appeal allowed, the conviction quashed and a new trial ordered on the third count in the indictment.
MURRAY J: On 18 July, the applicant was presented for trial in the District Court upon an indictment which contained three counts. The first was that between 15 February and 26 June 1998 he received a stolen Toyota Landcruiser knowing it to have been stolen. Of this charge, he was acquitted by the jury. He was further charged with stealing another Toyota Landcruiser and in the alternative with receiving that second vehicle knowing it to have been stolen. The jury acquitted him of stealing the vehicle, but he was convicted of receiving it.

The evidence at trial

A Mr Anderson is the owner of some factory units in Malaga. In January 1998, two men rented one of the units. One was Timothy Thompson and the other was the applicant. The lease was made out in Mr Thompson's name, but Mr Anderson was asked to make out receipts for rental payments to a company called Novadale Investments Pty Ltd. That was done at the applicant's…

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 Pak v The Queen

Details

AGLC: Pak v The Queen [2000] WASCA 309
Case: [2000] WASCA 309
Decision Date: 25 OCTOBER 2000

CaseChat Overview and Summary

The matter involved a criminal prosecution against the applicant, Pak, before a jury. The Crown sought to adduce evidence of the applicant's bad character in the form of a prior conviction. The evidence was led inadvertently, and the trial judge did not discharge the jury but instead directed them to disregard the evidence as irrelevant. Pak appealed against his conviction, arguing that the inadvertent introduction of the bad character evidence had caused a miscarriage of justice.

The legal issue before the court was whether the inadvertent introduction of bad character evidence, which was subsequently directed to be disregarded by the trial judge, amounted to a miscarriage of justice. The court had to determine whether the trial judge's direction to disregard the evidence was sufficient to remedy any prejudice caused by its introduction, and whether the failure to discharge the jury amounted to a miscarriage of justice.

The court found that the trial judge's direction to disregard the evidence was sufficient to remedy any prejudice caused by its introduction, and that there was no miscarriage of justice. The court held that the trial judge's direction was a sufficient remedy for the inadvertent introduction of the evidence, and that the failure to discharge the jury did not amount to a miscarriage of justice. The court also held that the applicant had not established that the inadvertent introduction of the evidence had any significant impact on the outcome of the trial.

The appeal was dismissed. The conviction of the applicant was upheld.

Orders