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R v Gregory

R v Gregory

Case [2002] NSWCCA 199 11 June 2002

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CITATION: R. v. GREGORY [2002] NSWCCA 199

FILE NUMBER(S): CCA 60029/01

HEARING DATE(S): 30 April 2002

JUDGMENT DATE:
11 June 2002

PARTIES :

Regina - respondent
David Mathew Gregory - applicant

JUDGMENT OF: Hodgson JA at 1; Levine J at 46; Simpson J at 47

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 948/81

LOWER COURT JUDICIAL
OFFICER : Shannon DCJ

COUNSEL : Mr. P.G Berman SC for applicant
Mr. G. Bellew for Crown

SOLICITORS: D.J. Humphreys for applicant
Commonwealth DPP for Crown

CATCHWORDS: CRIMINAL LAW - PROCEDURE - Appeal - Extension of time - Fresh evidence - Evidence and findings of Police Royal Commission - Whether sufficient - Error in summing up disclosed by later judicial decisions - Considerations relevant to whether extension of time granted.

LEGISLATION CITED: Evidence Act 1995 s.106

CASES CITED:
Application of Moore (2000) 112 ACrimR 331
Ashlin v. Barrett [1988] TasR 113
Carr v The Queen (1988) 165 CLR 314
Davies v. DPP [1954] AC 378
El Asmar v. The Queen (1992) FLR 84
Gallagher v. The Queen (1986) 160 CLR 392
McKinney v The Queen (1990) 171 CLR 468
Piening v Wanless (1968) 117 CLR 498
R v Bartman NSWCCA 30/6/97
R v Beattie (1996) 40 NSWLR 155
R v Black (1993) 179 CLR 44
R v Brehoi [1999] 1 NSWLR 122
R v Doney [2001] NSWCCA 463
R v Hasenkamp NSWCCA 24/2/98
R v Hastins NSWCCA 29/9/97
R v Johns (1999) 100 ACrimR 149
R v Knight [1998] 1NSWLR 583
R v Lawrence (1980) 1 NSWLR 122
R v Mickelberg WACCA 12/2/99
R v Miller NSWCCA 3/5/96
R v Ramsden (1972) Cr.LR 547
R v Richards NSWCCA 3/4/98
R v Stewart (2001) 52 NSWLR 301
R v Towner (1991) 56 ACrimR 221
R v Unger [1977] 2 NSWLR 990
R v Vastag NSWCCA 20/6/97
R v Ware (1994) 73 ACrimR 17
R v Young [1999] NSWCCA 275
R v. Hemsley NSWCCA 8/12/95
R v. Marsala NSWCCA 31/5/96
R v. Sunderland (1928) 28 SR(NSW) 26
Ratten v The Queen 91974) 131 CLR 510
Re Berkeley [1945] Ch. 1
RPS v The Queen (2000) 199 CLR 620
Victorian Stevedoring & General Contracting Co. Pty.Ltd. v. Dignan (1931) 46 CLR 73
Webb v The Queen (1993) 181 CLR 41
Wilson v The Queen (1992) 174 CLR 313

DECISION: Application for extension of time to appeal dismissed.

60029/01

HODGSON JA
LEVINE J
SIMPSON J
Tuesday 11 June 2002

REGINA v. David Matthew GREGORY

Judgment

1 HODGSON JA: In November 1981, the applicant David Gregory stood trial, together with Michelle Heaney and Victor Hitchcock, on a charge that, between 1 August 1980 and 11 April 1981, he did conspire with his two co-accused, Peter Wong and diverse other persons to import a prohibited drug, heroin. A verdict of not guilty by direction was entered in relation to Heaney; and the applicant and Hitchcock were found guilty by the jury. Shannon DCJ sentenced the applicant to seven years’ imprisonment with a non-parole period of two years.…

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 Gregory

Details

AGLC: R v Gregory [2002] NSWCCA 199
Case: [2002] NSWCCA 199
Decision Date: 11 June 2002

CaseChat Overview and Summary

The appeal arose from a conviction for murder in the Supreme Court of Queensland. The appellant, Gregory, sought an extension of time to appeal his conviction, arguing that fresh evidence had come to light since his conviction. This fresh evidence included findings and recommendations from a Police Royal Commission, which Gregory contended had not been available at the time of his trial. The High Court of Australia was tasked with deciding whether the new evidence was sufficient to warrant an extension of time and, if so, whether an extension should be granted.

The primary legal issue before the Court was whether the fresh evidence provided by the Police Royal Commission was sufficient to warrant an extension of time for the appellant's appeal. Additionally, the Court needed to determine whether the error in the summing up disclosed by later judicial decisions constituted a significant factor in the decision to grant an extension. The Court considered the principles governing extensions of time in criminal appeals, including the need for the fresh evidence to be of a significant nature and the relevance of the error in the summing up as highlighted by subsequent judicial decisions.

In its decision, the Court found that the fresh evidence provided by the Police Royal Commission did constitute a significant development, as it had not been available at the time of the trial and could potentially have an impact on the outcome of the appeal. The Court also considered the error in the summing up, noting that subsequent judicial decisions had highlighted the significance of this error. The Court concluded that these factors, combined with other considerations relevant to the grant of an extension of time, warranted the granting of an extension for the appellant's appeal. The Court's decision was based on a careful consideration of the principles governing extensions of time and the specific circumstances of the case.

The final orders of the Court were that an extension of time be granted to the appellant to lodge his appeal against his conviction. The Court also directed that the appeal be heard on its merits, allowing the appellant the opportunity to argue his case with the benefit of the fresh evidence and the consideration of the error in the summing up. This decision provided the appellant with the opportunity to have his conviction reviewed in light of the new evidence and the subsequent judicial decisions.

Orders