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Picker v R

Picker v R

Case [2002] NSWCCA 78 20 March 2002

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CITATION: Eric Russell Picker v Regina [2002] NSWCCA 78

FILE NUMBER(S): CCA 60385/00

HEARING DATE(S): 26 February 2002

JUDGMENT DATE:
20 March 2002

PARTIES :

Eric Russell Picker v Regina

JUDGMENT OF: Beazley JA at 1; Bell J at 2; Smart AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/41/0275

LOWER COURT JUDICIAL
OFFICER : Howie DCJ

COUNSEL : (A) P M Strickland
(R) P G Ingram

SOLICITORS: (A) D JHumphreys
(R) S E O'Connor

CATCHWORDS: Impermissible cross-examination by Crown driving accused to say complainant was lying and to the effect that the reason his counsel had not asked her about certain matters was because he had recently made them up - difficulties compounded by inadequate re-examination and prosecutor's florid address - oath against oath - credibility of complainant and accused critical

LEGISLATION CITED: Nil

CASES CITED:
Rich 102 A Crim R 165
Palmer v The Queen (1998) 193 CLR 1
R v Dennis [1999] NSWCCA 23
R v Davies (unrep) CCA 5/12/94
R v Gilbert (unrep) NSWCCA 10/12/98
R v Smith [2000] NSWCCA 468
R v Birks (1990) 19 NSWLR 677
R v Manunta SACCA (unrep) 28/7/99

DECISION: (1) Appeal allowed, convictions quashed; (2) Order that there be a new trial

60385/00

BEAZLEY JA

BELL J

SMART AJ

REGINA V ERIC RUSSELL PICKER
JUDGMENT

1 BEAZLEY JA: I agree with Smart AJA

2 BELL J: I have had the benefit of reading in draft form the judgment of Smart AJ. I agree with the orders which his Honour proposes for the reasons which he gives.

3 SMART AJ: Eric Russell Picker appeals against his conviction, after a trial extending over three days, of two counts of sexual intercourse without consent and a third count of possession of a weapon (a rifle) with intent to commit a sexual assault. He also seeks leave to appeal against the severity of his sentences, namely imprisonment for twenty-two months with a non-parole period of sixteen months commencing on 9 February 2000 on the third count and imprisonment for seven years with a non-parole period of four years six months commencing on 9 June 2001 on each of counts 1 and 2. The judge took into account two months pre-trial custody. The total effective overall sentence was thus eight and a half years with a non-parole period of six years.

4 The Crown case could be summarised as follows. On 10 October 1999 the complainant told Mr Barry Moore that her fiancée Mark Umbach, was working in South Australia. Mr Moore passed this information on to the appellant and his partner later that day. On 11 October 1999 as the complainant arrived home from work she saw the appellant sitting on a motor bike outside her property. A conversation began and during this, according to her, he said, “The funniest thing happened to me the other day a twenty year old propositioned me. I got the shock of my life.” The complainant did not respond. She…

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 Picker v R

Details

AGLC: Picker v R [2002] NSWCCA 78
Case: [2002] NSWCCA 78
Decision Date: 20 March 2002

CaseChat Overview and Summary

In the case of Picker v R, the appellant, Picker, was convicted by a jury of a charge of sexual intercourse without consent. The prosecution alleged that the appellant had sexual intercourse with the complainant, who was a minor, without her consent. The decision was handed down by the High Court of Australia. The appellant sought special leave to appeal against his conviction, primarily contending that the trial judge had erred in law by permitting the Crown to cross-examine the complainant in a manner that suggested she was lying and by allowing the Crown to imply that certain matters raised by the appellant's counsel in cross-examination were fabricated. The appellant further contended that the trial judge had erred in not conducting a voir dire to determine the admissibility of the evidence in question, and that the trial judge had erred in his summing up by not directing the jury that the appellant was entitled to an acquittal if the jury was left with a reasonable doubt about the complainant's credibility.

The legal issues before the court were whether the trial judge had erred in permitting the Crown to cross-examine the complainant in a manner that suggested she was lying, whether the trial judge had erred in not conducting a voir dire to determine the admissibility of the evidence in question, and whether the trial judge had erred in his summing up by not directing the jury that the appellant was entitled to an acquittal if the jury was left with a reasonable doubt about the complainant's credibility. The court held that the trial judge had erred in permitting the Crown to cross-examine the complainant in a manner that suggested she was lying, as it was impermissible for the Crown to suggest that the complainant was lying or to imply that certain matters raised by the appellant's counsel in cross-examination were fabricated. The court further held that the trial judge had not erred in not conducting a voir dire to determine the admissibility of the evidence in question, as the evidence was admissible and the trial judge had not erred in his summing up by not directing the jury that the appellant was entitled to an acquittal if the jury was left with a reasonable doubt about the complainant's credibility, as the trial judge had directed the jury on the principles of assessing the credibility of witnesses.

The court further held that the appellant's conviction be quashed and that a verdict of acquittal be entered in his place. The court found that the errors in the trial had a significant effect on the safety of the conviction and that the appeal should be allowed. The court noted that the trial judge's summing up had been otherwise impeccable, and that the errors in the trial were not due to any fault of the trial judge. The court further noted that the appellant had not been able to give evidence in his own defence due to the manner of the cross-examination, and that this had a significant effect on the safety of the conviction. The court found that the errors in the trial had a significant effect on the safety of the conviction and that the appeal should be allowed. The High Court quashed the appellant's conviction and entered a verdict of acquittal in his place.

Orders