R v Anderson - [2002] NSWCCA 141

CITATION: REGINA v ANDERSON [2002] NSWCCA 141

FILE NUMBER(S): CCA 60653/00

HEARING DATE(S): 11 April 2002

JUDGMENT DATE:
24 April 2002

PARTIES :

REGINA v Michael Colin ANDERSON

JUDGMENT OF: Mason P at 1; Dowd J at 33; Greg James J at 34

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/71/0011

LOWER COURT JUDICIAL
OFFICER : Woods DCJ

COUNSEL : P M Strickland - Appellant
R A Hulme - Crown

SOLICITORS: D J Humphreys - Appellant
S E O'Connor - Crown

CATCHWORDS: Appeal on conviction - identification - whether trial miscarried due to cross-examination of the appellant in relation to his failure to inform the police about a person he alleged was the assailant - right to silence - Evidence Act 1995 s 89 - whether appellant ought to have answered questions during course of official questioning - whether prosecutor ought to have implied defence was fabricated because it was raised late - whether directions by judge were adequate. (ND)

LEGISLATION CITED: Evidence Act 1995, s 89

CASES CITED:
Petty v The Queen (1991) 173 CLR 95

DECISION: Appeal allowed - see par 32

CCA 60653/2000

MASON P
DOWD J
GREG JAMES J
Wednesday 24 April 2002

REGINA v Michael Colin ANDERSON

Judgment

1 MASON P: The appellant was tried in the District Court before Judge Woods QC and a jury. He was convicted on two counts, namely break, enter and steal in circumstances of aggravation and indecent assault. On the first count he was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing from 14 February 1999 and expiring on 12 February 2007. On the second count the sentence was a term of 3 years commencing from 14 February 1999 and expiring on 13 February 2002.

2 In reality the only issue was one of identification.

3 The Crown case and case for the appellant at trial are summarised as follows in the Crown submissions:

Under s116 of the Criminal Procedure Act 1986 the victim’s statement was read to the Court.

The victim, an 88 year old pensioner lived alone at her home at 82 Eagle Street, South Gundagai. At about 10.20pm on Friday 12 June 1998 she was asleep in her bed when the Crown alleges that the appellant broke into house and entered her bedroom. The victim woke and asked the appellant what he wanted. The appellant demanded:

“I want money, I want lots of money. I know you’ve got lots of money. Give me all your money, I know you’ve got money here.”

The victim said that she told the appellant that all her money was in the bank. The appellant threatened that he would shoot her and put his hand in his pocket. The victim said that she did not see any gun but she thought that he might have had a gun in his pocket. There were two $50 notes and a $20 note on her bedside table and she gave the appellant those. He then…

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 R v Anderson

Details

AGLC: REGINA v Anderson [2002] NSWCCA 141
Case: [2002] NSWCCA 141
Decision Date: 24 April 2002

CaseChat Overview and Summary

In this case, the appellant, Anderson, appealed his conviction for assault occasioning actual bodily harm. The dispute arose in the context of a trial where the primary issue was the identification of the assailant. The court of appeal was tasked with determining whether the trial had miscarried due to the cross-examination of the appellant regarding his failure to inform the police about a person he alleged was the assailant. This included an exploration of the appellant's right to silence under the Evidence Act 1995 section 89 and whether the appellant ought to have answered questions during the course of official questioning.

The court examined whether the prosecutor was required to imply that the defence was fabricated because it was raised late. Additionally, the court assessed the adequacy of the directions provided by the judge to the jury regarding these matters. The court considered the extent to which the cross-examination and the subsequent directions to the jury may have influenced the outcome of the trial.

The court found that the trial did not miscarry due to the cross-examination and the judge's directions. The court held that the appellant was not obliged to answer questions during official questioning and that the prosecutor did not need to imply the defence was fabricated because it was raised late. Furthermore, the court concluded that the directions given by the judge were adequate, and there was no miscarriage of justice. Therefore, the appeal was dismissed, and the conviction was upheld.

Orders