R. v Donnelly; R. v Troth - [2001] NSWCCA 125

CITATION: R. v. DONNELLY; R. v. TROTH [2001] NSWCCA 125

FILE NUMBER(S): CCA 60685/2000; 60749/2000

HEARING DATE(S): 27/03/01

JUDGMENT DATE:
4 May 2001

PARTIES :

REGINA
JOHN BERNARD DONNELLY
JOHN CHARLES TROTH

JUDGMENT OF: Powell JA at 1; Heydon JA at 92; Simpson J at 93

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/11/0720

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : Crown: M.C. Grogan
Appellant Donnelly: D.A. Wetmore
Appellant Troth: Ms. L.M. McSpedden

SOLICITORS: Crown: S.E. O'Connor
Appellant Donnelly: Whitfields
Appellant Troth: Bicknell & Monteith (North Sydney)

CATCHWORDS: CRIMINAL LAW - Appeal - Verdict - Whether unreasonable, or cannot be supported, having regard to the evidence - Role of appellate court

CASES CITED:
M. v. The Queen (1994) 181 CLR 487

DECISION: In each case:; 1. Appeal against conviction dismissed.; 2. Leave to appeal against sentence refused

IN THE COURT OF
CRIMINAL APPEAL

CCA 60685/2000
CCA 50749/2000

POWELL JA

HEYDON JA

SIMPSON J

4 May 2001

R. v. DONNELLY
R. v. TROTH
JUDGMENT

1 POWELL JA: On 26 June 2000, the Appellants, John Bernard Donnelly ("Donnelly") and John Charles Troth ("Troth"), were jointly indicted before Shillington DCJ at the Sydney District Court on the following charge:

"That they between 1 July 1993 and 1 July 1995 at Sydney in the State of New South Wales did conspire to cheat and defraud Cementaid (NSW) Pty. Limited."

2 To that charge the Appellants pleaded not guilty and they were tried before his Honour and a jury of twelve.

3 On 10 July 2000, following a trial which occupied a little over eleven days, the jury returned verdicts of guilty against each of the Appellants.

4 On 6 October 2000, Shillington DCJ sentenced each of the Appellants to imprisonment for a period of 3 years comprising a non-parole period of 2 years and 3 months to commence on 6 October 2000 and to expire on 5 January 2003, with a parole period of 9 months to commence on 6 January 2003 and to expire on 5 October 2003.

5 Cementaid (NSW) Pty. Limited ("Cementaid") - which was a subsidiary of a company known as Aldred & Co. Pty. Limited ("Aldred") - and which occupied factory premises at Lilyfield was, at all material times, a manufacturer of chemicals for use as ad-mixtures and additives for cement and concrete and as surface treatments for coating concrete and other building materials. The function of the chemicals manufactured by Cementaid was to alter the properties of cement and concrete so as to make the cement and concrete water-proof, or corrosion proof, or dust proof, or to stop oil or grease being absorbed into concrete, or to stop mould growing on brick work. All told, Cementaid made some thirty-three different products, most of which were made in the factory at Lilyfield.

6 The raw materials required by Cementaid took varying forms, some being in powder form and others being in a liquid form, some of the chemicals produced by Cementaid being water based…

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.

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Details

Case: [2001] NSWCCA 125
Decision Date: 4 May 2001

CaseChat Overview and Summary

The case of R. v Donnelly; R. v Troth was heard in the court of appeal. The appellants, Donnelly and Troth, were convicted of various criminal charges. The appeal concerns the verdicts rendered in their cases, specifically whether they were unreasonable or could not be supported given the evidence presented during the trial. The central issue for the court was to determine the correctness of the primary judge's decision regarding the evidence and the subsequent verdicts. The court had to assess whether the verdicts were unreasonable or unsupported by the evidence, a matter that involves scrutiny of the primary judge's interpretation of the evidence and the application of legal principles.

The legal issues before the court involved the standard of review applicable to appeals against verdicts. The court was tasked with determining the appropriate standard for assessing whether a verdict is unreasonable or unsupported by the evidence. The appeal court needed to consider the primary judge's assessment of the evidence, the weight given to particular pieces of evidence, and the overall coherence of the verdict in light of the presented facts. The court also had to ensure that it did not substitute its own view of the evidence for that of the primary judge, but rather examined whether the primary judge's conclusions were open to the tribunal of fact.

In delivering the judgment, the court emphasised the importance of maintaining the distinction between the role of the appellate court and the primary judge. It was held that the appellate court should not lightly interfere with the primary judge's assessment of the evidence, unless the verdict was plainly wrong or could not be reasonably supported. The court found that the primary judge had appropriately considered the evidence and applied the correct legal principles, and therefore, the verdicts were not unreasonable nor unsupported. Consequently, the appeals were dismissed, affirming the primary judge's decisions. The court underscored the principle that the appellate court should not usurp the primary judge's role in assessing the evidence and drawing factual inferences.

Orders