R v Bolus - [2003] NSWSC 661

CITATION: R v Bolus and Others [2003] NSWSC 661 revised - 19/08/2004

HEARING DATE(S): 04/02/03 - 10/07/03

JUDGMENT DATE:
29 May 2003

JUDGMENT OF: Howie J at 1

DECISION: Directions to be given to the jury as to the consequence of certain findings of fact.

CATCHWORDS: Criminal Law and Procedure - Jurisdiction, Practice and Procedure - Judge's Summing Up - Directions as to the consequence of certain findings by the jury.

CASES CITED: R v Bengert (No. 5) (1980) 53 CCC (2d) 481
R v Greenfield [1973] 1 WLR 1151
Saffron v The Queen (1988) 17 NSWLR 395
Caratti v The Queen (2000) 22 WAR 527
R v El Azzi [2000] NSWCCA 397
Nock v DPP [1978] AC 979
Regina v Griffiths [1966] 1 QB 589

PARTIES :
Regina v James Herbert Bolus, Regina v Dominic Darrington Brokenshire, Regina v Bruce Cornwell, Regina v David Paul Dicecco, Regina v Juan Guillermo Diez-Orozco, Regina v Vincent Francis, Regina v John Lawrence, Regina v Daniel Patrick McDougall, Regina v David George Norris

FILE NUMBER(S): SC 70061/02, 70066/02,70223/02, 70219/02, 70221/02, 70225/02, 70220/02, 70224/02, 70222/02

COUNSEL: P. Roberts with I. Bourke - Crown
S. Kluss - Accused Bolus
G. Whitehead - Accused Brokenshire
P. Boulten with P. Williams - Accused Cornwell
P. Hogan - Accused Dicecco
P. Young - Accused Diez-Orozco
R. Cooley - Accused Francis
C. Waterstreet - Accused Lawrence
B. Rigg - Accused McDougall
C. Loukas - Accused Norris

SOLICITORS: Commonwealth DPP - Crown
Graham W. Howe & Co., Solicitors - Accused Bolus
King's Lawyers - Accused Brokenshire
Paul Hardin, Solicitor - Accused Cornwell
Peter Ash, Solicitor - Accused Dicecco
Neil J. O'Connor & Assoc., Solicitors - Accused Diez-Orozco
Morgan Ardina Solicitors - Accused Francis
Kings Lawyers - Accused Lawrence
Barry Watterson, Solicitor - Accused McDougall
Rigelsford Jenson & Co., Solicitors - Accused Norris

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J
THURSDAY 29 MAY 2003

70223/02 R v Bruce CORNWELL
70219/02 R v David Paul DICECCO
70221/02 R v Juan Guillermo DIEZ-OROZCO
70225/02 R v Vincent FRANCIS
70220/02 R v John LAWRENCE
70224/02 R v Daniel Patrick McDOUGALL
70222/02 R v David George NORRIS
JUDGMENT: see p 4674 of transcript.

1 HIS HONOUR: The accused were indicted that between about 1 January 2001 and 6 August 2001 they conspired between themselves and other persons to import a commercial quantity of cocaine. There were three named persons with whom the accused are alleged to have conspired, being Jaimie Giraldo Rincon, Govert van Bommel and Wouter van Bommel. I will refer to these persons as the Colombians. The Crown alleges that the Colombians and a fourth person, Adolfo Zapata, all entered the conspiracy in Colombia and were participants throughout the period alleged in the indictment until the Colombians were arrested in early August 2001. Zapata was permitted to leave Australia shortly before those arrests were made.

2 The Crown case is that two of the Colombians, that is Rincon and Govert van Bommel, left Panama in a yacht,…

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 Bolus

Details

AGLC: R v Bolus [2003] NSWSC 661
Case: [2003] NSWSC 661
Decision Date: 29 May 2003

CaseChat Overview and Summary

The case of R v Bolus involved the defendant, Bolus, who was on trial in a court of criminal jurisdiction. The nature of the dispute centred around the judge's summing up to the jury and whether the judge had correctly directed the jury regarding the consequences of certain findings. The case was heard in the higher court where such matters of law and procedure were considered.

The primary legal issue that the court was required to decide was whether the judge had adequately informed the jury about the implications of their potential findings. Specifically, the court had to determine if the judge's summing up was accurate and complete in directing the jury on the legal consequences of specific factual findings. This required an examination of the judge's instructions to ensure they aligned with established legal principles and provided a clear path for the jury to follow in reaching their verdict.

The court's reasoning involved a thorough analysis of the judge's summing up, comparing it with the relevant legal precedents and statutory requirements. The court found that the judge had indeed provided a comprehensive and accurate direction to the jury regarding the consequences of their findings. The judge's summing up was deemed to have correctly outlined the legal implications, thus ensuring that the jury was well-informed and capable of making a just decision based on the evidence presented. The outcome was in favour of the defendant, Bolus, as the court determined that no miscarriage of justice had occurred due to the judge's summing up.

The final orders of the court upheld the conviction, recognising that the legal process had been followed correctly and that the judge's summing up had been appropriate. The court's decision affirmed the integrity of the trial and the importance of clear and precise judicial directions in criminal proceedings.

Orders