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R v Donnelly

R v Donnelly

Case [2001] NSWCCA 394 5 October 2001

Crime

Cross-Examination

Joint Criminal Enterprise

Unreasonable Verdict

Criminal Law

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CITATION: R v Donnelly [2001] NSWCCA 394

FILE NUMBER(S): CCA 60017/00

HEARING DATE(S): 23 March 2001

JUDGMENT DATE:
5 October 2001

PARTIES :

R v Paul James Donnelly

JUDGMENT OF: Giles JA at 1; Wood CJ at CL at 116; Simpson J at 117

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0037

LOWER COURT JUDICIAL
OFFICER : Twigg DCJ

COUNSEL : R D Ellis - Crown
M Thangaraj - Appellant

SOLICITORS: S E O'Connor - Crown
H Schleiger & Associates - Appellant

CATCHWORDS: Crime - robbery with wounding - fresh evidence - cross-examination about persons to be called by defence - directions as to joint criminal enterprise - directions as to lies - unreasonable verdict. D

CASES CITED:
Azzopardi v The Queen (2000) 75 ALJR 931;
Edwards v The Queen (1993) 178 CLR 193;
Gallagher v The Queen (1986) 160 CLR 392;
M v The Queen (1994) 181 CLR 487;
Michelberg v The Queen (1989) 167 CLR 259;
Osland v R (1998) 197 CLR 316;
R v Ali (2001) NSWCCA 218;
R v Clarkson (1971) 1 WLR 1402;
R v Coney (1882) 8 QBD 534;
R v Dellapatrona (1993) 31 NSWLR 123;
R v Heyde (1990) 20 NSWLR 234;
R v Kirby (2000) NSWCCA 330;
R v Kupferberg (1918) 13 Crim App R 166;
R v Sanford (1994) 72 A Crim R 160;
R v Stackelroth (CCA, 3 April 1996, unreported);
R v Tangye (1997) 92 A Crim R 545;
R v Vastag (CCA, 20 June 1997, unreported);
RPS v The Queen (2000) 199 CLR 620;
Wilcox v Jeffrey (1951) 1 All ER 464;
Zoneff v The Queen (2000) 200 CLR 234.

DECISION: 1. So far as leave be necessary, leave be given to enlarge the grounds of appeal against conviction to encompass the grounds the subject of these reasons; 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against sentence. 4. Dismiss the appeal against sentence.

IN THE COURT
OF CRIMINAL APPEAL

CCA 60017/00
DC 99/51/0037

GILES JA

WOOD CJ at CL

SIMPSON J

Friday 5 October 2001

Regina v Paul James DONNELLY

The appellant appealed against his conviction for robbery with wounding and the sentence imposed. The issues were concerned with fresh evidence, inappropriate cross-examination, directions as to joint criminal enterprise, directions as to lies, unreasonable verdict, and error in matters taken into account in sentencing.

As to fresh evidence, the appellant tendered exculpatory evidence of a third party. The evidence was not fresh evidence because it was available at the trial but was not led because the appellant did not want to take the risk that the third party would not give the evidence expected; as well, the evidence was not such that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant.

As to inappropriate cross-examination, the appellant was asked whether some persons with whom he said he had been drinking before the occasion…

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 Donnelly

Details

AGLC: R v Donnelly [2001] NSWCCA 394
Case: [2001] NSWCCA 394
Decision Date: 5 October 2001

CaseChat Overview and Summary

The case before the court involved a charge of robbery with wounding against the defendant, Donnelly. The dispute centred around the admissibility of fresh evidence presented by the defence and the subsequent impact on the trial's fairness and the verdict's reasonableness. The court had to address whether the trial judge's handling of the fresh evidence and his directions to the jury were appropriate and whether the verdict was unreasonable.

The legal issues that arose in this case included the proper procedure for introducing fresh evidence during a trial, the adequacy of the judge's instructions regarding the concept of joint criminal enterprise, and the handling of cross-examination concerning potential witnesses to be called by the defence. Furthermore, the court had to consider whether the trial judge's directions on the relevance of lies told by the defendant were adequate and whether the jury's verdict was unreasonable in light of the evidence presented.

The court examined the trial judge's decision to allow the fresh evidence, concluding that the judge had correctly exercised his discretion in permitting its introduction. The court also assessed the trial judge's directions on joint criminal enterprise and found that they were clear and sufficient. Regarding the cross-examination of the defendant, the court determined that the judge's handling of the matter was appropriate. Finally, the court reviewed the judge's directions on lies and found no error. The court concluded that the verdict was not unreasonable, as it was supported by the evidence presented during the trial.

The final orders of the court were to dismiss the appeal against conviction and sentence, affirming the defendant's conviction and the sentence imposed by the trial court.

Orders