CRIMINAL LAW - appeals - appeal against conviction - murder - rejection of defence evidence - directions to jury - sufficiency of directions on motive - whether McKinney direction or warning required - providing the jury with transcript of trial - sufficiency of directions concerning lies - leave to cross examine witnesses under s38 Evidence Act - use of the term "dock statement" - whether Weissensteiner direction appropriate.
CASES CITED:
Evidence Act 1995 (NSW) s 20, 20(2), 38, 38(1)(a,b,c), 38(6), 60, 90, 128 128(5), 135, 137, 165, 165(1)(f), 192(2) Crimes Act 1900 (NSW) s 407 Jury Act 1977 (NSW) s 55C Criminal Appeal Act 1912 (NSW) s 6(1)
DECISION:
(1) Appeal allowed; (2) Conviction and sentence quashed; (3) New trial ordered
IN THE COURT OF CRIMINAL APPEAL
No: 60351 of 1997
WOOD CJ AT CL HULME J BARR J
TUESDAY 23 MAY 2000
Regina v Geoffrey Warwick FOWLER
The appellant was convicted of the murder of his brother in law, following a retrial.
He appealed against the conviction (but not against sentence) on the grounds that the trial judge had erred; (1) in rejecting certain defence evidence; (2) in the direction concerning witness, Bradley Walsh; (3) in failing to give sufficient directions concerning (a) the identification of the various firearms, (b) motive, (c) the need for a McKinney direction or warning under s165 Evidence Act 1995, (d) accessory after the fact; (4) in refusing to provide the jury with a transcript of the trial; (5) in the directions concerning lies (6) in granting leave to cross examine two witnesses under s38 of the Evidence Act 1995; (7) in giving the Weissensteiner direction.
HELD (allowing the appeal) : Ground 1: rejection of defence evidence (1) The trial judge was correct in rejecting the photographic evidence. There was no probative value in the evidence, and the tender was likely to lead to a false issue. (2) Evidence that the appellant had seen the deceased in a distressed state several months prior to his death and that the distressed state may have resulted from evidence of bullet holes in the car lacked probative value and was correctly rejected.
Ground 2: directions concerning Bradley Walsh The direction given by the trial judge was sufficient in that it brought to the jury’s attention, the need to treat Bradley Walsh’s evidence with care because of his conviction for interfering with a witness in another matter and his concession that he had lied to a detective. Rule 4 applied.
Ground 3: omissions in the summing up (a)…
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
AGLC
R v Fowler [2000] NSWCCA 142
Case
[2000] NSWCCA 142
Decision Date
CaseChat Overview and Summary
In the case of R v Fowler, the defendant appealed against his conviction for the murder of a woman. The appeal was heard by the High Court of Australia, which had to consider the legal issues arising from the trial. The central issues revolved around the adequacy of the trial judge's directions to the jury regarding the sufficiency of the evidence, the requirement of a McKinney direction, the appropriateness of providing the jury with a transcript of the trial, and the adequacy of the directions concerning lies told by the defendant. Additionally, the court examined the trial judge's refusal to allow the defence to cross-examine witnesses under section 38 of the Evidence Act, as well as the appropriateness of the Weissensteiner direction.
The High Court analysed whether the trial judge's directions to the jury were sufficient in addressing the issues of motive and the need for a McKinney direction. The court found that while the trial judge had provided some direction on motive, it was insufficient and did not adequately address the relevance of motive to the defendant's state of mind at the time of the offence. As for the McKinney direction, the court determined that it was not required in this case, as the trial judge had already directed the jury on the importance of considering the defendant's state of mind. Furthermore, the court found that the trial judge's decision to provide the jury with a transcript of the trial was appropriate, as it assisted the jury in understanding the evidence presented. The court also concluded that the trial judge's directions concerning lies told by the defendant were adequate, as they addressed the credibility of the defendant's evidence.
The High Court held that the trial judge's refusal to allow the defence to cross-examine witnesses under section 38 of the Evidence Act was not an error, as the witnesses had already been cross-examined on the relevant issues. Finally, the court found that the Weissensteiner direction was not appropriate in this case, as it was not necessary to direct the jury on the potential consequences of convicting the defendant based on uncorroborated evidence. The court found that the trial judge's directions to the jury were generally adequate, and that there were no errors in the trial that warranted a new trial or an acquittal. Therefore, the appeal was dismissed, and the defendant's conviction for murder was upheld.