R v Gibson - [2002] NSWCCA 401

CITATION: Regina v Troy Terrence Gibson [2002] NSWCCA 401

FILE NUMBER(S): CCA 60295/02

HEARING DATE(S): 17 September 2002

JUDGMENT DATE:
3 October 2002

PARTIES :

Regina
Troy Terrence Gibson

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 2; Howie J at 91

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0971

LOWER COURT JUDICIAL
OFFICER : Hock DCJ

COUNSEL : Mr. E. Wilkins - Crown
Mr. P. Byrne SC/Mr. G. Turnbull - Appellant

SOLICITORS: S. E. O'Connor - Crown
Forsters, Solicitors - Appellant

CATCHWORDS: Criminal law - procedure at trial - Crown Prosecutor's decision not to call in the Crown case a particular witness - discussion of the duty of a Crown Prosecutor in that connection. - Criminal law - alleged miscarriage of justice at trial deriving from the decision of the Crown Prosecutor not to call a particular witness in the Crown case - discussion of principles to be applied in determining whether or not a miscarriage of justice has in fact occurred. - Criminal law - procedure at trial - admission of photographs depicting the physical injuries sustained by the victim of a very severe physical assault - discussion of relevant principles.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED:
The Queen v Apostilides (1984) CLR 563
R v Kneebone (1999) 47 NSWLR 450
Randall v The Queen [2002] l WLR 2237
Wilde v The Queen (1988) 164 CLR
Festa v The Queen [2001] HCA 72 (13 December 2001]

DECISION: Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed

60259/02

WOOD CJ at CL
SULLY J
HOWIE J
Thursday 3 October 2002

REGINA v TROY TERRENCE GIBSON

Judgment

1 WOOD CJ at CL I have read the judgment in draft of Sully J. I agree with the orders proposed, and with the reasons of his Honour.

2 SULLY J: On 26 February 2002 Mr. Gibson, the appellant, and one Daniel David Stephens were jointly arraigned in the District Court upon an indictment containing three counts.

3 The first count charged the two accused jointly:

“For that they on 1 August 1998 at Jindabyne in the State of New South Wales did maliciously inflict grievous bodily harm upon Clinton Joseph Portelli with intent to do grievous bodily harm to Clinton Joseph Portelli.”

4 The second count charged the two accused jointly:

“For that they on 1 August 1998 at Jindabyne in the State of New South Wales did maliciously inflict grievous bodily harm upon Clinton Joseph Portelli.”

Crimes Act 1900,

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 Gibson

Details

AGLC: R v Gibson [2002] NSWCCA 401
Case: [2002] NSWCCA 401
Decision Date: 3 October 2002

CaseChat Overview and Summary

In the case of R v Gibson, the appellant was convicted of various criminal charges, including assault occasioning actual bodily harm. The case reached the appellate court, where the appellant argued that the Crown Prosecutor's decision not to call a particular witness in the Crown case led to a miscarriage of justice. Additionally, the appellant challenged the admissibility of certain photographs depicting the victim's injuries.

The primary legal issue was whether the Crown Prosecutor's decision not to call a particular witness resulted in a miscarriage of justice. The court examined the principles governing the duty of the Crown Prosecutor in deciding which witnesses to call in a criminal trial. It was necessary to determine whether the decision was made in accordance with the prosecutor's duty to ensure a fair trial and whether the appellant's right to a fair trial was compromised. The second legal issue involved the admissibility of photographs depicting the victim's injuries and the principles that should be applied when deciding whether such evidence should be admitted.

The court found that the Crown Prosecutor's decision not to call the particular witness did not amount to a miscarriage of justice. It was determined that the decision was made in accordance with the prosecutor's duty to ensure a fair trial, and the appellant's right to a fair trial was not compromised. The court further found that the photographs were admissible as they were relevant to the case and their probative value outweighed any prejudicial effect. The principles applied in determining the admissibility of the photographs were that they were necessary to understand the severity of the assault and the injuries sustained by the victim.

No final orders were made in this case as it was an appeal against conviction and sentence. However, the appeal was dismissed, and the original conviction and sentence were upheld.

Orders