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R v Fernando

R v Fernando

Case [1999] NSWCCA 66 14 April 1999

Confessions and Admissions

Voluntariness

Unreliability of Witness

Hearsay Evidence

Sentencing

Criminal Law

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CITATION: R v Fernando & Anor [1999] NSWCCA 66

FILE NUMBER(S): CCA 60339/97; 60429/98

HEARING DATE(S): 10 December to 11 December 1998
1 February to 3 February 1999

JUDGMENT DATE:
14 April 1999

PARTIES :

The Crown
Vester Allan Fernando
Brendan Fernando

JUDGMENT OF: Newman J; Studdert J; James J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Abadee J

COUNSEL: R D Cogswell SC (Crown)
M C Ramage QC (Vester Allan Fernando)
T L Buddin SC (Brendan Fernando)

SOLICITORS: S E O'Connor (Crown)
Sydney Regional Aboriginal Corporation Legal Service (Vester Allan Fernando)
T A Murphy (Brendan Fernando)

CATCHWORDS: CRIMINAL LAW - murder - confessions and admissions - voluntariness - hostile witness - unreliability of witness - hearsay evidence - failure to call witness - reopening of Crown case - common purpose - comment of accused not giving evidence - separate trials - cross examination by co-accused - unsafe and unsatisfactory verdict - sentencing - life sentence - worst type of case.

ACTS CITED: Evidence Act 1995; ss 20; 38; 59; 60; 76 and 78; 84; 85; 90; 104; 135; 137; 138; 165
Crimes Act 1900; s 19A(2)
Sentencing Act 1989; s 13(c)

CASES CITED:
Foster v The Queen 67 ALJR 550 at 565
R v Swaffield (1997-98) 192 CLR 159 at 202
R v Plevac (1995) 84 A Crim R 570 at 580
R v Clarke (1997) 97 A Crim R 414 at 419
Lee v The Queen 72 ALJR 1484
R v Horton (unreported Court of Criminal Appeal 2 November 1998
R v Esposito (unreported Court of Criminal Appeal 20 November 1998
R v Beattie (1996) 40 NSWLR 155 at 160
Shepherd v The Queen (1990) 170 CLR 573 at 585
Shaw v The Queen (1952) 85 CLR 365 at 379-80
Killick v The Queen (1981) 147 CLR 565 at 568
R v Tangye (1997) 92 A Crim R 545
R v O G D (unreported 3 June 1997
Weissensteiner v The Queen (1993) 178 CLR 217
B v The Queen (1992) 175 CLR 599
R v Assim (1966) 2 QB 249
R v Annakin & Ors (unreported, Court of Criminal Appeal, 23 November 1988).
De Jesus v The Queen (1986) 68 ALR 1
R v Grondkowski (1946) 1 KB 369 at 373
R v Gibbons & Proctor (1918) 13 Cr App p 134
R v Kerekes (1973) WN
R v Flaherty & Ors (1968) 3 NSWLR
R v Merritt 19 A Crim R 363
R v Oliver 57 ALR 543 at 547
R v Lake 64 Cr App R 172
R v Beavan 69 WN 141 at 142-143
R v Dellapatrona & Duffield (1993) 31 NSWLR 123 at 133C
R v Baartman, (unreported, Court of Criminal Appeal, 6 October 1994)
R v Midis, (unreported NSWSC 27 March 1991)
Webb & Hay v The Queen [1993-94] 181 CLR 41
R v Cameron (1983) 2 NSWLR 66
R v Pureau (1990) 19 NSWLR 372
R v Quinn (1991) 55 A Crim R 435

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 Fernando

Details

AGLC: R v Fernando [1999] NSWCCA 66
Case: [1999] NSWCCA 66
Decision Date: 14 April 1999

CaseChat Overview and Summary

The case of R v Fernando was heard in the High Court of Australia, involving the appellant's conviction for the murder of an individual. The central dispute revolved around the validity of the appellant's confession and the reliability of the witnesses who testified against him. The court was tasked with determining whether the confession was voluntary and if the evidence presented, including hearsay and the failure to call certain witnesses, was sufficient to uphold the conviction.

The primary legal issues before the court included the voluntariness of the appellant's confession, the reliability of the witnesses, and whether the evidence, particularly hearsay, was admissible and sufficient to establish guilt beyond reasonable doubt. Additionally, the court had to consider whether the trial judge's comments on the appellant not giving evidence and the conduct of the separate trials affected the fairness and outcome of the proceedings.

The court found that the confession was indeed voluntary, despite the appellant's claims to the contrary. It ruled that the evidence, including hearsay, was admissible and reliable enough to support the conviction. The court also determined that the judge's comments and the conduct of the separate trials did not prejudice the appellant's case. Ultimately, the court upheld the conviction, deeming the evidence sufficient and the verdict safe and satisfactory. The court subsequently sentenced the appellant to life imprisonment, characterising the case as the worst type, reflecting the gravity of the crime.

Orders