17 February 2003, 18 February 2003, 19 February 2003, 20 February 2003, 21 February 2003
JUDGMENT DATE:
3 December 2003
JUDGMENT OF:
Mason P at 1; Barr J at 1; Smart AJ at 392
DECISION:
Garry William Bartle: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Maximiliano Diez: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Peter Darryl Fox: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.; Sir Thomas Graham Fry: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Thomas McCaffrey: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered; Robert Angelo Roberti: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Hamish Edmond Thompson: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.
CATCHWORDS:
criminal law - joint trial - whether joint trial miscarried - whether outburst by one joint accused that all accused had criminal records and had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character was intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately - whether directions sufficient to secure separate trial of cases - whether trial judge's refusal to supply jury with transcript of counsel's closing address justified - whether miscarriage resulted - whether evidence of admissions unlawfully obtained - whether trial judge's discretion to admit it miscarried - whether evidence wrongly admitted - whether miscarriage resulted from admission of evidence that a co-offender had pleaded guilty and undertaken to assist the Crown - whether trial judge adequately put defence to jury - criminal law - sentencing - co-offender sentenced by different judge on different facts - whether resulting sentence "erroneous" - whether a justifiable sense of grievance resulted - co-offender received a discounted sentence following an undertaking to give evidence but Crown did not call him to give evidence - whether justifiable sense of grievance resulted.
[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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AGLC
R v Bartle [2003] NSWCCA 329
Case
[2003] NSWCCA 329
Decision Date
CaseChat Overview and Summary
The case of R v Bartle involved a joint trial where the defendants argued that the trial had miscarried due to various reasons. The High Court of Australia was tasked with determining several legal issues related to the conduct of the trial, the admissibility of certain evidence, and the fairness of the sentencing process. The defendants contended that the trial had been compromised by an outburst from one of the accused, remarks about their criminal records and prior incarcerations, and alleged inadequate directions from the trial judge. They further argued that the Crown was improperly allowed to present evidence of bad character in response, and that the judge's refusal to provide the jury with a transcript of counsel's closing address led to a miscarriage of justice.
The High Court examined whether the outburst and the subsequent judicial directions were sufficient to ensure a fair trial for each accused. It was found that the trial judge's directions were adequate to mitigate any potential prejudice arising from the outburst. The court also determined that the Crown's response to the raising of good character was permissible, as it was not intentionally provoked. Furthermore, the court held that the trial judge's refusal to supply the jury with a transcript of the closing address did not result in a miscarriage of justice, as the directions given to the jury were sufficient to secure a separate trial of the cases.
In relation to the evidence, the court found that admissions made by the accused, which were allegedly unlawfully obtained, were properly admitted as they were not obtained through oppressive or improper means. The court also concluded that evidence of a co-offender pleading guilty and undertaking to assist the Crown did not result in a miscarriage of justice, as the trial judge adequately put the defence to the jury. Finally, the court addressed the sentencing issue, holding that the sentence imposed on one defendant, which was different from that of a co-offender, was not erroneous, and did not result in a justifiable sense of grievance, even though the co-offender received a discounted sentence for agreeing to testify for the Crown.