Criminal law - Prosecution appeal - Appeal from acquittal at trial before Judge alone - Indictment for murder - Acceptance by trial Judge that evidence of a medical witness created a reasonable doubt - Whether medical witness qualified to express opinion - Whether on all of the evidence the trial Judge ought to have held a reasonable doubt - Prosecution appeal - Basis of determination of such appeal

Legislation:

Criminal Code

Criminal Practice Rules

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr J K Tavener & Ms L Gaskell
Respondent: Ms J A Fordham

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Andree Horrigan

Case(s) referred to in judgment(s):

Anderson v The Queen (2000) 1 VR 1
Bratt v Western Airlines (1946) 166 ALR 1061
Carter v The Queen (1994) 12 WAR 310
Casley‑Smith v F S Evans & Sons Pty Ltd and Anor (No 1) (1988) 49 SASR 314
Clarke v Ryan (1960) 103 CLR 486
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
R v ADW (2002) A Crim R 532
R v Kurtic (1996) 85 A Crim R 57
R v Margaria & Anor [2003] WASCA 253
R v Mickelberg (1996) 90 A Crim R 126
R v Middleton (2000) 114 A Crim R 258
R v Sodo (1975) 61 Cr App R 131
Velevski v The Queen (2002) 187 ALR 233

Case(s) also cited:

Bugg v Day (1949) 79 CLR 442
Davern v Messel (1984) 155 CLR 21
Hocking v Bell (1945) 71 CLR 430
Murphy v R (1989) 167 CLR 94
R v Anderson [2002] VSCA 16
R v Turner [2001] WASCA 344
R v Udechuku (No 5) [1982] WAR 21
Shepherd v R (1990) 170 CLR 573
Walton v R [1978] AC 788

MILLER & McKECHNIE JJ: The respondent was tried before Judge alone (s 651C, Criminal Code (WA)) in the Supreme Court at Perth between 19 and 29 May 2003 on an indictment which alleged that on 11 May 2001 at Perth he murdered Cameron Court. On 3 June 2003 the learned trial Judge found the respondent not guilty of the crime alleged or of the crime of manslaughter, and directed that a judgment of acquittal be entered.
On 23 June 2003 the appellant sought leave to appeal against the verdict of acquittal pursuant to the provisions of s 688(2)(ba) of the Criminal Code, contending that the learned trial Judge had made errors of law and/or errors which involve questions of mixed law and fact.

Grounds of appeal

Of the grounds of appeal filed by the appellant, three were abandoned, leaving the following grounds which were argued at…

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 Court

Details

AGLC: R v Court [2003] WASCA 308
Case: [2003] WASCA 308
Decision Date: 10 DECEMBER 2003

CaseChat Overview and Summary

The case before the court was an appeal by the Crown against the acquittal of the defendant in a murder trial. The defendant had been charged with murder, tried before a judge alone, and acquitted by the judge who found that the evidence presented by the prosecution did not exclude the possibility of the defendant's innocence. The Crown appealed the decision, arguing that the trial judge had erred in accepting the opinion of a medical witness as creating a reasonable doubt in the mind of a reasonable person.

The primary legal issues before the court were whether the medical witness was qualified to provide the opinion they did, and whether the trial judge was correct to accept that opinion as creating a reasonable doubt. The court considered whether the trial judge had erred in accepting the opinion of the medical witness, and whether the opinion of the medical witness, when considered with all the other evidence, was sufficient to create a reasonable doubt. The court also considered whether the trial judge should have directed a verdict of guilty.

The court held that the trial judge was correct to accept the opinion of the medical witness as creating a reasonable doubt, and that the opinion, when considered with all the other evidence, was sufficient to create a reasonable doubt. The court held that the medical witness was qualified to provide the opinion, and that the trial judge was correct to acquit the defendant. The court held that the trial judge was not required to direct a verdict of guilty, and that the appeal should be dismissed.

The court dismissed the appeal, and affirmed the acquittal of the defendant.

Orders