R v Dover - [2001] NSWCCA 412

CITATION: R v Dover [2001] NSWCCA 412

FILE NUMBER(S): CCA 60232/99

HEARING DATE(S): 11 October 2001

JUDGMENT DATE:
11 October 2001

PARTIES :

Regina v Craig Scott Dover

JUDGMENT OF: Stein JA at 12; Studdert J at 1; Greg James J at 13

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/0147

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : W.G. Dawe QC (Crown)
P.J.D. Hamill (Appellant)

SOLICITORS: S.E. O'Connor (Crown)
Kremer Townsend Lawyers

LEGISLATION CITED: Criminal Appeal Act

CASES CITED:
RPS v The Queen (2000) 199 CLR 620
Azzopardi v The Queen; Davis v The Queen (2001) 179 ALR 349
Weissensteiner v The Queen (1993) 178 CLR 217

DECISION: Appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60232/99

STEIN JA

STUDDERT J

GREG JAMES J

Thursday 11 October 2001

REGINA v CRAIG SCOTT DOVER

JUDGMENT

1 STUDDERT J: This is an appeal against conviction.

2 The appellant stood trial in February 1999 charged with malicious wounding with intent to do grievous bodily harm. The jury found the appellant guilty as charged on 16 February 1999 and on 5 May 1999 the appellant was sentenced to a minimum term of five years penal servitude to date from 3 July 1997 and to expire on 2 July 2002, and an additional term of two years four months to commence on 3 July 2002 and to expire on 2 November 2004.

3 The grounds of appeal, as expressed in the document filed, were as follows:

“1. The trial miscarried as a result of the learned trial judge’s directions to the jury regarding the election of the appellant not to give evidence in the trial.

Particulars

i) The learned trial judge erred in directing the jury it could ‘accept more readily the complainant’s evidence’.

ii) The learned trial judge erred in directing the jury that ‘any doubt’ as to the complainant’s evidence could be ‘more readily discounted’.

iii) The direction implied ‘denial or contradiction’ may not be available to the appellant.”

4 It is unnecessary to do more than to refer very briefly to the outline of the evidence. Critical to the Crown case was the evidence of the alleged victim of the shooting who asserted that the appellant, in the course of a drug transaction, shot him in the face from close range, having positioned his car alongside the car in which the victim was seated at the time. The victim’s credibility was attacked at the trial and the victim did not identify who shot him when first interviewed by police. Through evidence of the appellant’s father, an alibi defence was raised. The appellant did not give evidence.

5 In the course of his summing-up the trial judge gave the jury directions concerning the circumstance that the appellant gave no evidence before them. The grounds of appeal above stated were prompted by the following directions appearing at pp 18-19 of the summing-up:

“In this trial, members of the jury, the accused elected to say nothing. He decided not to…

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 Dover

Details

AGLC: R v Dover [2001] NSWCCA 412
Case: [2001] NSWCCA 412
Decision Date: 11 October 2001

CaseChat Overview and Summary

This appeal against conviction arose from a decision made by the District Court where the appellant, Craig Scott Dover, was convicted of malicious wounding with intent to do grievous bodily harm. The conviction and sentence were appealed to the Court of Criminal Appeal. The appeal centred on the trial judge's directions to the jury regarding the appellant's decision not to give evidence. The appellant argued that these directions were misdirections that prejudiced his case.

The primary legal issue in this case was whether the trial judge's directions concerning the appellant's decision not to give evidence constituted a misdirection that warranted the quashing of the conviction. The court had to consider whether the trial judge's comments on the appellant's silence improperly influenced the jury's assessment of the evidence. This was particularly relevant in light of recent High Court decisions that clarified the permissible scope of comments on an accused's failure to give evidence.

The Court of Criminal Appeal held that the trial judge's directions were indeed misdirections. The court noted that the directions allowed the jury to consider the appellant's silence in assessing the credibility of the complainant's evidence, which was impermissible under the principles established by the High Court in RPS v The Queen and subsequent cases. The Court concluded that the errors identified in the summing-up were significant and could not be ignored under the proviso in s 6 of the Criminal Appeal Act. Consequently, the appeal was allowed, and the conviction and sentence were quashed. A new trial was ordered.

Orders