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Pethybridge v R

Pethybridge v R

Case [2020] NSWCCA 247 2 October 2020

Lies

Jury Directions

Consciousness of Guilt

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pethybridge v R [2020] NSWCCA 247
Hearing dates: 3 July 2020
Date of orders: 2 October 2020
Decision date: 02 October 2020
Before: Payne JA at [1]; Fagan J at [117]; Cavanagh J at [118]
Decision:
(1) Leave to appeal (including leave to appeal under rule 4) granted on all grounds;
(2)   Appeal allowed on grounds 1 and 2 of appeal against conviction;
(3)   Appeal dismissed on ground 3 of appeal against conviction;
(4)    Quash the conviction dated 20 June 2018;
(5)   Aggregate sentence imposed on 21 September 2018 quashed and in lieu thereof the following sentence imposed on counts 1-6 on the indictment presented on the second trial:
(a)   Aggregate sentence of 4 years imprisonment imposed to commence on 2 August 2018;
(b)   Aggregate non-parole period of 2 years and 9 months imposed;
(c)   The applicant will first be eligible for parole on 1 May 2021;
(d)   The following indicative sentences are identified:
(i)   Count 1: 14 months;
(ii)   Count 3: 14 months;
(iii)   Count 4: 22 months;
(iv)   Count 5: 12 months;
(v)   Count 6: 13 months.
(6)   Matters the subject of the indictment presented in the first trial remitted to the arraignment list in the District Court on 9 October 2020.

Catchwords:
CRIMINAL PROCEDURE – lies – directions to jury – consciousness of guilt – where Crown conducted a case in relation to one alleged lie told in consciousness of guilt – whether trial judge erred in directing jury about three alleged lies told in consciousness of guilt
EVIDENCE – character evidence – good character – where applicant sought to lead evidence of lack of prior convictions – where trial judge refused to allow applicant to adduce evidence of prior good character – whether trial judge erred
EVIDENCE – tendency evidence – coincidence evidence – whether direction sought by Crown – whether trial judge permitted to give direction

Legislation Cited:
Crimes Act 1900 (NSW), ss 61E, 65, 66C, 76, 413
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeal Rules, r 4
Criminal Procedure Act 1986 (NSW), ss 141, 142
Evidence Act 1995 (NSW), ss 55, 110, 135

Cases Cited:
Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15
Clegg v R [2017] NSWCCA 125
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
JV v R [2017] NSWCCA 49
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Melbourne v The Queen (1999) 198 CLR 1;

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 Pethybridge v R

Details

AGLC: Decision restricted [2020] NSWCCA 247
Case: [2020] NSWCCA 247
Decision Date: 02 October 2020

CaseChat Overview and Summary

Pethybridge v R was a criminal case heard by the High Court of Australia. The appellant was charged with various counts of deception, fraud, and other offences related to the alleged theft and unauthorised use of a motor vehicle. The primary issue in this appeal was whether the trial judge had erred in his directions to the jury concerning the alleged lies told in the consciousness of guilt, the admissibility of good character evidence, and the admissibility of coincidence evidence. The appellant argued that the trial judge had erred in his directions to the jury concerning three alleged lies told in the consciousness of guilt, as the Crown had only presented evidence of one such lie. The appellant further argued that the trial judge had erred in refusing to allow evidence of the applicant's good character to be presented to the jury. Finally, the appellant argued that the trial judge had erred in permitting the Crown to give a direction to the jury concerning coincidence evidence, as this was not a matter that the Crown had sought to rely on in their case.
The High Court found that the trial judge had not erred in his directions to the jury concerning the alleged lies told in the consciousness of guilt. The court found that the trial judge was entitled to direct the jury to consider all of the evidence presented, including evidence of the appellant's alleged lies, in determining whether the appellant was guilty of the offences charged. The court further found that the trial judge had not erred in refusing to allow evidence of the appellant's good character to be presented to the jury, as such evidence was not relevant to the issues in the case. Finally, the court found that the trial judge had not erred in permitting the Crown to give a direction to the jury concerning coincidence evidence, as this was a matter that the jury was entitled to consider in determining whether the appellant was guilty of the offences charged. The appeal was ultimately dismissed.

Orders