R v Collisson - [2003] NSWCCA 212

Reported Decision:
139 A Crim R 389

New South Wales

Court of Criminal Appeal

CITATION: R v Collisson [2003] NSWCCA 212

HEARING DATE(S): 21 July 2003

JUDGMENT DATE:
29 July 2003

JUDGMENT OF: Tobias JA at 1; James J at 38; Howie J at 39

DECISION: Appeal dismissed

CATCHWORDS: Criminal law - Appeal on conviction - Trial judge refused to make an order under s128(5) of Evidence Act requiring witness (the accused's accomplice) to give evidence on basis that his evidence was "inherently suspect" and charge against accomplice had not yet been dealt with - No knowledge by either party as to what the witness might say - Whether trial judge erred in applying the "inherently suspect" principle to the witness when considering whether the interests of justice required the witness to give evidence - Non-reportable - Non-distributable

LEGISLATION CITED: Evidence Act 1995, s128(5), s128(6), s128(7), s165, s165

CASES CITED: R v Booth (1982) NSWLR 847
Jones v Dunkel (1959) 101 CLR 298

PARTIES :
Regina
David Leonard Collisson

FILE NUMBER(S): CCA 60151/02

COUNSEL: M Austin for the Appellant
R Hulme SC for the Crown

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

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70062/01

LOWER COURT
JUDICIAL OFFICER : Whealy J

CCA 60151/02

TOBIAS JA
B JAMES J
HOWIE J
Tuesday 29 July 2003

R v DAVID LEONARD COLLISSON

Judgment

1 TOBIAS JA: On 26 February 2002 David Leonard Collisson (the appellant) was found guilty by a jury of the murder of Shahab Kargarian on 8 October 2000 at Greenwich in the State of New South Wales. On 26 March 2002 the appellant was sentenced by Whealy J to imprisonment for 24 years to commence on 8 October 2000 and to expire on 7 October 2024 with a non-parole period of 18 years to expire on 7 October 2018.

2 The appellant appeals to this Court only against his conviction. Five grounds of appeal were originally advanced when the Notice of Appeal was filed on 26 March 2002. The appeal was later refined to three grounds and, ultimately, to one, namely, that the trial judge was in error when he failed to grant an application by the Crown in which the appellant joined that a Mr Simon Bradley be examined on the voir dire with the intention that he give evidence in the trial. At the hearing before us this ground was further refined in accordance with the appellant’s oral submissions to which I refer below.

3 The Crown case was that at or around 12.45 am on 8 October 2000 the deceased and his girlfriend, Shabnam Faiz, parked at Greenwich Peninsula to watch the city lights. They were standing in front of the deceased’s Toyota and eating when a man demanding the deceased’s wallet accosted them. Another, shorter, man was present but not in the immediate area. The deceased said he did not have a wallet at which point the taller of the two…

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 Collisson

Details

AGLC: R v Collisson [2003] NSWCCA 212
Case: [2003] NSWCCA 212
Decision Date: 29 July 2003

CaseChat Overview and Summary

The defendant, Collisson, appealed against his conviction on the basis that the trial judge erred in refusing to order a co-accused to testify. The co-accused had not been charged with the offence at the time of the trial. The appeal was heard in the High Court of Australia. The issue before the court was whether the trial judge was correct in refusing to compel the co-accused to testify, given the evidence was deemed "inherently suspect" and that the co-accused had not been charged. Specifically, the court had to determine whether the trial judge applied the principle correctly when assessing whether the interests of justice required the witness to give evidence.

The court considered that the trial judge's decision to refuse the order was not in error. The judge was within his discretion to determine that the evidence was inherently suspect and, therefore, unreliable. The judge had to balance the potential unreliability of the evidence against the interests of justice, which included the right to a fair trial. The court found that the judge did not err in his application of the principle, given the circumstances. The court further noted that the co-accused had not been charged, and there was no guarantee that the witness would provide evidence favourable to the defendant. The court upheld the trial judge's decision as it was within the bounds of his discretion.

The court dismissed the appeal and affirmed the conviction. The reasoning of the trial judge was found to be sound, and the interests of justice were appropriately balanced against the potential unreliability of the evidence. The court held that the decision not to compel the co-accused to testify was not an error. The appeal was dismissed, and the conviction was upheld.

Orders