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Puchalski v R

Puchalski v R

Case [2007] NSWCCA 220 23 July 2007

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Puchalski v Regina [2007] NSWCCA 220

HEARING DATE(S): 24 and 25 May 2007

JUDGMENT DATE:
23 July 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Smart AJ at 3

DECISION: Appeal against convictions dismissed

CATCHWORDS: Malicious shooting with intent to do grievous bodily harm and maliciously discharge loaded arms with intent to do grievous bodily harm - Circumstantial case - Was appellant the shooter - Jury acting reasonably entitled to be satisfied beyond reasonable doubt of guilt of accused - no necessity for Shepherd direction - Committal deposition of subpoenaed witness who went overseas very shortly before trial without notifying Crown or police correctly admitted pursuant to s 65 of Evidence Act - Correct construction of "not available to give evidence" in s 65(1) and "all reasonable steps" in cl 4(1)(e) of Pt 2 of Dictionary - Exercise of discretion under s 192 - Correct refusal of adjournment of trial.

LEGISLATION CITED: Evidence Act s 65(1) & (3)

CASES CITED: Barca v The Queen (1975) 133 CLR 82
House v The King (1936) 55 CLR 499
Knight v The Queen (1992) 66 ALJR 860
M v The Queen (1994) 181 CLR 487
Martin v Osborne (1936) 55 CLR 367
Plomp v The Queen (1963) 110 CLR 234
R v Teasdale [2004] NSWCCA 91
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Hillier (2007) HCA 13

PARTIES: Benjamin Joshua Puchalski v Regina

FILE NUMBER(S): CCA 2007/763

COUNSEL: (A) P J Hamill SC & A Francis
(C) D Arnott SC & J Dwyer

SOLICITORS: (A) S E O'Connor (LAC)
(C) S Kavanagh Solr for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0546

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 23 November 2005

2007/763

McCLELLAN CJ at CL

HISLOP J

SMART AJ

Monday, 23 July 2007

Benjamin Joshua PUCHALSKI v Regina
JUDGMENT

1 McCLELLAN CJ at CL: I agree with Smart AJ.

2 HISLOP J : I agree with Smart AJ

3 SMART AJ

INTRODUCTION

Benjamin Joshua Puchalski appeals against his conviction of maliciously shooting at Rudi Waterman with intent to do grievous bodily harm to him (s 33 Crimes Act ) and that of maliciously discharge loaded arms with intent to do grievous bodily harm to Rudi Waterman (s 33A). There were at least two occasions on which shots were fired. There was no application for leave to appeal against sentence.

4 The issue in the trial was whether the appellant was the person who fired the shots. There was no witness who said he saw the appellant fire the shots. The Crown asked the jury to conclude that the appellant was the shooter from a combination of circumstances. The grounds of appeal which include that the verdict was unreasonable mandate a careful review and consideration of the evidence.

THE FACTS

5 On 21 February 2004 Rudi Waterman had stopped at traffic lights at the corner of Gertrude…

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 Puchalski v R

Details

AGLC: Puchalski v R [2007] NSWCCA 220
Case: [2007] NSWCCA 220
Decision Date: 23 July 2007

CaseChat Overview and Summary

In the case of Puchalski v The Queen, the appellant was charged with multiple counts of malicious shooting with intent to do grievous bodily harm and maliciously discharging loaded arms with intent to do grievous bodily harm. The dispute centred on the appellant's guilt and the admissibility of a witness's deposition under s 65 of the Evidence Act, as well as the refusal of an adjournment of the trial. The case was heard in the High Court of Australia.

The primary legal issues the court was required to decide were whether the jury was entitled to be satisfied beyond reasonable doubt of the appellant's guilt, and whether the deposition of the subpoenaed witness who had gone overseas without notifying the Crown or police was correctly admitted under s 65 of the Evidence Act. The court also needed to determine the correct construction of "not available to give evidence" in s 65(1) and "all reasonable steps" in cl 4(1)(e) of Pt 2 of the Dictionary, as well as the exercise of discretion under s 192 and the refusal of an adjournment of the trial.

The court held that the jury was acting reasonably in being satisfied beyond reasonable doubt of the appellant's guilt, and that there was no necessity for a Shepherd direction. The court found that the correct construction of "not available to give evidence" in s 65(1) and "all reasonable steps" in cl 4(1)(e) of Pt 2 of the Dictionary meant that the deposition of the subpoenaed witness was correctly admitted. The court also found that the exercise of discretion under s 192 was appropriate and that the refusal of an adjournment of the trial was correct. The High Court upheld the conviction of the appellant.

The final orders of the court were to affirm the decision of the court of appeal and to dismiss the appeal. The court held that the conviction of the appellant was correctly based on the evidence presented, including the deposition of the subpoenaed witness, and that the trial judge's refusal of an adjournment was a proper exercise of discretion.

Orders