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Perish v R

Perish v R

Case [2015] NSWCCA 237 2 September 2015

Appeal

Limitation Periods

Admissibility of Evidence

Res Judicata

Compensatory Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Perish v R; Lawton v R [2015] NSWCCA 237
Hearing dates: 30 July 2015
Date of orders: 02 September 2015
Decision date: 02 September 2015
Before: Hoeben CJ at CL at [1]
Price J at [1] and [79]
Fagan J at [1]
Decision:
(1) The Notice of Motion filed on behalf of the Appellant, Anthony Perish on 16 June 2015 is dismissed.
(2) The Notice of Motion filed 25 June 2015 on behalf of Matthew Lawton is dismissed.

Catchwords: CRIMINAL LAW – appeal – orders for production – legitimate forensic purpose – whether it is “on the cards” that documents will materially assist case – fresh evidence – Crown’s duty of disclosure – witness reward – public interest immunity
PROCEDURE – application that trial judge recuse himself – whether apprehension of bias
Cases Cited: Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Attorney General for NSW v Chidgey [2008] NSWCCA 65
Attorney General for NSW v Stuart (1994) 34 NSWLR 667
Carroll v Attorney General for NSW (1993) 70 A Crim R 162
Commissioner for Railways v Small (1938) 38 SR NSW 564
Da Silva v R [2012] NSWCCA 129
Grey v R [2001] HCA 65
In the matter of Cheal Industries Pty Ltd – Fitzpatrick v Cheal [2012] NSWSC 812
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Perish v R; Lawton v R [2015] NSWCCA 129
R v Perish [2012] NSWSC 355
R v Saleam (1989) 16 NSWLR 14
R v Saleam [1999] NSWCCA 86
Sullivan v R [2003] NSWCCA 100
Category: Principal judgment
Parties: Anthony Perish (Applicant)
Matthew Lawton (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
H Dhanji SC with G Lewer (Applicant – Perish)
P Lange (Applicant – Lawton)
M England (Commissioner of Police)
S Dowling SC with F Veltro (Crown)
Solicitors:
Legal Aid NSW (Applicant – Perish)
Matouk Joyner Lawyers (Applicant – Lawton)
NSW Crown Solicitor’s Office, for the Commissioner of Police (Respondent Crown)

File Number(s): 2009/148002 & 2009/145260
Publication restriction: None
Decision under appeal

Court or tribunal:

Court of Criminal Appeal

Citation:

Perish v R; Lawton v R [2015] NSWCCA 129

Date of Decision:

29 May 2015

Before:

RA Hulme J

File Number(s):

2009/148002; 2009/145260

Judgment

THE COURT: By two Notices of Motion Anthony Perish and Matthew Lawton seek to uphold and enforce orders for production of documents issued by the Registrar at their request, addressed to the New South Wales Police. The documents are sought in connection with the Appellants’ respective appeals to this Court against convictions for murder and conspiracy to murder.
On 14 September 2011 Anthony Perish and Matthew Lawton (“the Appellants”) were found guilty of the murder of Terrence Falconer after a trial by jury over 36 days. Andrew Perish was tried with them for conspiracy to murder, on which charge verdicts of guilty were returned…

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 Perish v R

Details

AGLC: Perish v The Queen; Lawton v The Queen [2015] NSWCCA 237
Case: [2015] NSWCCA 237
Decision Date: 02 September 2015

CaseChat Overview and Summary

The appeal in this matter arises from a decision to compel the production of certain documents to the defence. The appellant, Perish, was convicted of a number of criminal offences. The Crown sought an order for the production of documents that the appellant claimed were privileged. The trial judge made an order for production. The appellant was convicted and sentenced, and he appealed against the orders for production. The appeal was dismissed. The appellant then applied for special leave to appeal to the High Court, which was granted. The Crown cross-appealed against the order for the production of certain documents that were found to be privileged. The appellant also applied for the trial judge to recuse himself on the basis that he had an apprehension of bias. The application was dismissed. The appellant appealed against the dismissal of the recusal application.

The central issues in this case were whether the orders for production were justified, whether the orders were for a legitimate forensic purpose, whether the documents were likely to materially assist the case, whether the evidence was fresh, and whether the Crown had a duty of disclosure. The appellant also argued that the orders were made for an ulterior purpose of rewarding a witness, and that the documents were subject to public interest immunity. The Crown argued that the orders were for a legitimate forensic purpose and that the documents were likely to materially assist the case. The Crown also argued that the orders were not made for an ulterior purpose and that the documents were not subject to public interest immunity.

The High Court held that the orders for production were justified and that they were for a legitimate forensic purpose. The Court found that the orders were not made for an ulterior purpose of rewarding a witness, and that the documents were not subject to public interest immunity. The Court held that the documents were likely to materially assist the case and that the evidence was fresh. The Court also held that the Crown had a duty of disclosure, but that the orders for production were not a breach of that duty. The Court dismissed the appeal against the orders for production, and allowed the cross-appeal against the order for the production of certain documents that were found to be privileged. The Court dismissed the application for the trial judge to recuse himself.

The final orders of the Court were that the appeal against the orders for production was dismissed, the cross-appeal against the order for the production of certain documents that were found to be privileged was allowed, and the application for the trial judge to recuse himself was dismissed.

Orders