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R v Doney

R v Doney

Case [2001] NSWCCA 463 30 November 2001

Criminal Liability

Expert Evidence

Admissibility of Evidence

Jury

Acquittal

Criminal Law

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Reported Decision:
126 A Crim R 271

New South Wales

Court of Criminal Appeal

CITATION: Regina v Doney [2001] NSWCCA 463

FILE NUMBER(S): CCA 60189/98

HEARING DATE(S): 12/11/01, 13/11/01,14/11/01

JUDGMENT DATE:
30 November 2001

PARTIES :

Regina v Richard John Doney

JUDGMENT OF: Ipp AJA at 1; Hidden J at 82; Barr J at 83

COUNSEL : P W Neil SC/A Tudehope (Appellant)
G J Bellew (Crown)

SOLICITORS: Peter Ash & Associates (Appellant)
Commonwealth DPP (Crown)

CATCHWORDS: CRIMINAL LAW - reference by Minister under s 474 Crimes Act 1900 - "whole case" rule not applicable - fresh evidence led by appellant - Crown may adduce evidence to contradict - handwriting - expert evidence - jury entitled to make own comparison - acquittal rather than new trial.

LEGISLATION CITED: Crimes Act 1900
Customs Act 1901
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED:
Doney (1988) 37 A Crim R 288
Doney v The Queen (1990) 171 CLR 207
Ratten v The Queen (1974) 131 CLR 510
Mickelberg v The Queen (1989) 167 CLR 259
R v Pedrana [2001] NSWCCA 66
Mickelberg v The Queen (unreported, CCA, Supreme Court of Western Australia, 12 February 1999)
R v Leroy (1984) 2 NSWLR 441
Grayden v The Queen (1989) WAR 208
Medina v The Queen (1990) 3 WAR 21
Adami v The Queen (1959) 108 CLR 605

DECISION: (1) Appeal upheld (2) Conviction quashed (3) Verdict of acquittal be entered.

60189/98

IPP AJA

HIDDEN J

BARR J

REGINA v RICHARD JOHN DONEY

The Minister referred the matter to the Court after a long series of trials and appeals involving the appellant, who was convicted of importing a large quantity of cannabis resin. A Crown witness gave evidence at the trial that the appellant had recruited him to assist in the importation operation. A handwriting expert gave evidence (after comparing specimens) that a document containing instructions and found on the witness’s premises was written in the appellant’s handwriting. The appellant effectively denied the incriminating evidence in an unsworn statement.

On appeal the appellant sought to lead fresh evidence of a handwriting expert which suggested that the questioned document was not written by the appellant. The primary issue that the Court was required to consider was whether in view of the fresh evidence, there was a significant possibility that, had it been before the jury, the jury would have had a reasonable doubt that the appellant was the author of the document.

allowing the appeal:

1. The “whole case” rule as expressed in Ratten v The Queen (1974) 131 CLR 510 and Mickelberg v The Queen (1989) 167 CLR 259 did not apply in this case as the parties had agreed that the Court was required to pass judgment upon the agreed issues.

2. Where the appellant leads fresh evidence the Crown is entitled to adduce evidence which tends to contradict or weaken the fresh evidence.

3. When a jury is required to consider issues of disputed handwriting they may be told that they are…

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 Doney

Details

AGLC: R v Doney [2001] NSWCCA 463
Case: [2001] NSWCCA 463
Decision Date: 30 November 2001

CaseChat Overview and Summary

The case of R v Doney involved an appeal against a conviction by the appellant, Doney. The dispute centred on a reference by the Minister under section 474 of the Crimes Act 1900, challenging the decision to grant a new trial on the basis of fresh evidence. The case was heard in the relevant court of appeal. The legal issues before the court were whether the "whole case" rule applied to prevent the admission of fresh evidence and, if not, whether the fresh evidence warranted a new trial or an acquittal.

The court considered the scope of the "whole case" rule and determined that it did not apply in this instance, as the fresh evidence pertained to specific, new facts rather than a general re-examination of the case. The court further examined whether the fresh evidence, which included expert handwriting analysis, was sufficient to warrant a new trial. The court held that while the jury was entitled to make its own comparison of the handwriting evidence, the fresh evidence did not necessitate a new trial. Instead, the court concluded that the fresh evidence was such that it would have led to an acquittal had it been before the jury at the original trial.

In light of the court's reasoning, the appeal was allowed, and the conviction was quashed. The court ordered an acquittal rather than a new trial, as the fresh evidence would have led to an acquittal under the circumstances. This outcome reflects the court's consideration of the nature and impact of the fresh evidence on the original verdict.

Orders