R v Fowler - [2000] NSWCCA 352

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Fowler [2000] NSWCCA 352

FILE NUMBER(S):
60679/98

HEARING DATE(S): 28 August 2000

JUDGMENT DATE: 07/09/2000

PARTIES:
REGINA (Respondent)
Jason Anthony FOWLER (Appellant in person)

JUDGMENT OF: Studdert J Simpson J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/31/0377, 97/31/0484

LOWER COURT JUDICIAL OFFICER: Shillington DCJ

COUNSEL:
W G Dawe (Crown/Respondent)

SOLICITORS:
S E O'Connor (Crown/Respondent)

CATCHWORDS:

LEGISLATION CITED:
Evidence Act 1995
Crimes Act 1900

DECISION:
Appeal against conviction dismissed
leave to appeal against sentence granted
appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60679/98
STUDDERT J
SIMPSON J
DOWD J

7 September 2000

REGINA v Jason Anthony FOWLER
JUDGMENT

STUDDERT J: I agree with Simpson J

SIMPSON J :

On 3 June 1998 following a trial by jury in the District Court the appellant was convicted of a single count that, on 8 August 1997, whilst armed, and with intent to rob, he assaulted and wounded Mr Peter John Kidd. He appeals against that conviction. He seeks leave to appeal against the sentence subsequently imposed upon him by Shillington DCJ in relation to that offence, and against another sentence imposed in relation to a charge of escaping from lawful custody, to which charge he pleaded guilty.
The Crown case on the principal charge was that, at about 2.00 am on 8 August 1997, the appellant violently broke into a residence attached to a newsagency in Boollaroo and demanded money of the occupant, Mr Kidd. The appellant was armed with a large knife and was wearing a balaclava that concealed his face. Mr Kidd attempted to close the bedroom door, but the appellant forced it open, in the process cutting Mr Kidd’s hand. The appellant then kicked the door, which caved in on Mr Kidd. Mr Kidd seized an aluminium ladder that was fortuitously nearby, and used it to hit the appellant on the head. Mr Kidd sustained cuts to his left cheek, left hand, and bruising to his feet.
The trial which commenced on 1 June 1998 was the appellant’s third trial on this charge. The first, which began before Job DCJ in July 1998, aborted after an inadvertent remark by a witness. At the end of the second trial, which began immediately after the discharge of the jury in the first, the jury was unable to agree.
The evidence in the Crown case can be divided into three principal categories:
1.        evidence of the description of his attacker given by Mr Kidd, which in some respects at least was consistent with the appearance of the appellant;
2.        circumstantial evidence linking the appellant with the offence; for example, evidence that he was acquainted with Mr Kidd’s daughter, who also lived in the premises, and evidence of an injury to the appellant’s head, consistent with having been struck by an aluminium ladder;
3.        evidence of admissions said to have been made by the appellant to his mother and sister.
The appellant denied that…

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 Fowler

Details

AGLC: R v Fowler [2000] NSWCCA 352
Case: [2000] NSWCCA 352
Decision Date: 7 September 2000

CaseChat Overview and Summary

In the case of R v Fowler, the appellant contested the trial judge's decision to compel his mother and sister to testify against him. The appellant argued that the evidence provided by his mother and sister should be excluded due to duress and improper acquisition. The trial judge ruled that the evidence should be admitted, finding that the desirability of their testimony outweighed any harm caused by its admission. The court's decision was grounded in the balancing exercise required by the Evidence Act 1995, s138, which mandates the exclusion of evidence obtained improperly unless the benefits of admitting it outweigh the detriment of its source.

The legal issues at hand involved the application and interpretation of the Evidence Act 1995, specifically sections 138 and 18. Section 138 requires the exclusion of evidence obtained improperly unless the desirability of its admission outweighs the undesirability of its source, necessitating a balancing exercise by the judge. The appellant argued that his mother and sister's testimonies were obtained under duress and should therefore be excluded. However, the court found that the trial judge was not presented with sufficient evidence of duress prior to the witnesses' testimonies being given, and no application was made to exclude the evidence under s138. The court also noted that the application to exclude the evidence was based solely on the power conferred by s18, which pertains to the protection of a relationship from harm rather than the impropriety of the evidence's acquisition.

The court determined that there was no error in the trial judge's approach to the evidence. The judge was satisfied that there was no evidence of duress that was presented before the witnesses testified, and no application was made under s138 to exclude the evidence on that basis. The court found that the trial judge correctly performed the balancing exercise required by s18, determining that the desirability of the evidence outweighed any potential harm to the relationship between the appellant and his mother. The court upheld the trial judge's decision to require the witnesses to testify, finding that the appellant's arguments did not establish any grounds for excluding their evidence.

No further orders were made by the court beyond affirming the trial judge's decision. The court found that the trial judge's process and reasoning were sound and that there was no error in the admission of the evidence in question.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

His Honour was satisfied that there was evidence that the relationship between Mrs Fowler and her son would be affected by her being required to give evidence and proceeded to perform the balancing exercise required by the section. He was, however, not satisfied that the nature and extent of the harm outweighed the desirability of having the evidence given, and, in fact, was positively satisfied that the desirability of Mrs Fowler being required to give the evidence outweighed any harm that would be done to her or to the relationship between her and the appellant. He therefore required her to testify. There is no error in the approach taken by his Honour.(ii) Evidence Act 1995, s138 Under this ground the appellant argues that the evidence of his mother and sister should have been rejected pursuant to s138 of the Evidence Act. S138 is concerned with evidence obtained improperly or illegally. Here, it is not argued that the evidence was obtained illegally, but that it was obtained improperly. Although the section bears a heading which suggests that it confers a discretion to exclude improperly or illegally obtained evidence, sub s (I) in fact requires the evidence to be excluded:“unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”That is, the section, like s18, requires the judge to perform a balancing exercise, the result of which dictates whether the evidence is to be admitted or not. Sub s(3) specifies (again non exhaustively) matters required to be taken into account in weighing the desirability against the undesirability of admitting the evidence. The basis of the asserted impropriety identified in the appellant’s documents was “copious amounts of duress” said to have been applied to the two witnesses. The transcript is a little confusing in relation to the material that was put before his Honour, before the evidence of the two witnesses was adduced before the jury, to support this claim. There is nothing to suggest that such material, in relation to Mrs Fowler, was elicited until she was cross-examined in the presence of the jury. She then said that the Detective in charge of the investigation, Detective Reid, told her that if she withheld information about what the appellant had told her she could be facing five years in gaol and the loss of a custody battle for her grand daughter for whom she was caring. She said she was frightened and believed what Detective Reid had said. However, as I have noted above, that evidence does not appear to have been put before the trial judge and it did not emerge until she was cross-examined. No application in reliance on s138 was made for the exclusion of Mrs Fowler’s evidence. The application that was made to exclude her evidence was confined to the power conferred by s18. There can be no error in the failure of the trial judge to exclude evidence on the basis of information that was never brought to his attention until after it had been given to the jury.

Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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