Solicitors for the Applicant: T. Murphy, General Manager, Legal Services, Legal Aid Commission of NSW
Counsel for the Respondent: N. R. Cowdery QC
Solicitors for the Respondent: S. E. O'Connor, Solicitor for Public Prosecutions (NSW)
Orders
Appeal allowed. Set aside the order of the New South Wales Court of Criminal Appeal and in lieu thereof order that the appeal to that Court be allowed and the appellant's convictions be quashed.
Decision
DEANE, TOOHEY AND McHUGH JJ The appellant, Mr Kirk Pitkin, was convicted in the District Court of New South Wales of one count of stealing and of another count of allowing himself to be carried in a motor vehicle without the consent of the owner. An appeal to the New South Wales Court of Criminal Appeal (Hunt CJ at Common Law, Smart and Levine JJ) on the ground that the convictions were unsafe and unsatisfactory was unanimously dismissed. At the request of both parties, the present appeal, which is from the judgment of the Court of Criminal Appeal, was heard immediately after the grant of special leave. The appeal was allowed, the order of the Court of Criminal Appeal dismissing the appeal to that court was set aside and in lieu thereof it was ordered that the appeal to that court be allowed and the appellant's convictions be quashed. The Court indicated that it would subsequently publish its reasons for making those orders. This we now do.
2. The background facts fall into a small compass and can be briefly stated. At approximately 1.30 p.m. on 17 December 1990, Ms Diane Clarke was in a supermarket known as "Jewels Foodbarn" in the Sydney suburb of Rooty Hill. She was holding a shoulder bag under her arm and pushing a shopping trolley. A male stranger gave her a "forceful shove" and "reefed" her handbag from her. The man ran from the shop and got into a red Holden Commodore which was driven away. The Holden Commodore had been stolen from a Mr Povey earlier in the day. The Crown case is that the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle was the appellant.
3. Ms Clarke did not see the offender's face. To quote her, she "(j)ust saw the back of him running away". The only description she could give of the offender was that he had "short hair", was of "slight build" and wore "a T-shirt and a pair of football shorts". She said that she "estimated from his build" that he was "probably around about his twenties" but added that she "couldn't ... honestly say how old he was" since she "didn't see his face".
4. On the day in question, Ms Michelle Vella was at the Rooty Hill shopping centre. On three separate…
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.
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Details
AGLC
Pitkin v The Queen [1995] HCA 30
Case
[1995] HCA 30
Decision Date
CaseChat Overview and Summary
In *Pitkin v The Queen*, the High Court of Australia considered an appeal against a conviction for murder. The appellant, Pitkin, had been found guilty of murder by a jury in the Supreme Court of New South Wales. The central dispute revolved around the admissibility of certain evidence and the directions given by the trial judge to the jury.
The High Court was required to determine two primary legal issues. Firstly, whether the trial judge erred in admitting evidence of the appellant's prior convictions and prior bad character. Secondly, the Court had to consider whether the trial judge's summing up to the jury contained misdirections regarding the elements of the offence of murder and the onus of proof.
The Court held that the admission of evidence of prior convictions and bad character was prejudicial and had improperly influenced the jury's decision. It was found that this evidence was not relevant to any issue in the trial and its admission constituted a miscarriage of justice. Furthermore, the Court found that the summing up contained significant errors concerning the definition of murder and the prosecution's burden to prove all elements of the offence beyond reasonable doubt. The legal principle applied was that evidence of prior convictions or bad character is generally inadmissible unless it has a specific, relevant probative value that outweighs its prejudicial effect.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.