R v Hodge - [2002] NSWCCA 10

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Hodge [2002] NSWCCA 10

FILE NUMBER(S):
60637 of 2000

HEARING DATE(S): 11 February 2002

JUDGMENT DATE: 15/02/2002

PARTIES:
REGINA v BARRIE ALLEN HODGE

JUDGMENT OF: Hodgson JA Levine J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70062 of 1999

LOWER COURT JUDICIAL OFFICER: Dunford J

COUNSEL:
G I O Rowling
(Crown)

T A Game SC
(Appellant)

SOLICITORS:
S E O'Connor
(Crown)

D J Humphreys
(Appellant)

CATCHWORDS:
Criminal law - Summing Up - lies - consciousness of guilt - lies going to credit - whether requirement of direction as prescribed in Zoneff v The Queen (2000) 200 CLR 234 - Criminal Appeal Rules, r 4

LEGISLATION CITED:
Evidence Act 1995
Criminal Appeal Rules, r 4

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60637 of 2000
HODGSON JA
LEVINE J
HOWIE J
15 February 2002

REGINA v HODGE Barrie Allen

Judgment

HODGSON JA: I agree with Levine J.
LEVINE J: The appellant was charged with murder and stood trial before Dunford J and a jury in July 2000. He pleaded not guilty to murder but guilty to manslaughter on the basis of provocation. The plea was not accepted by the Crown and the appellant was found guilty of murder and was sentenced by his Honour to a total term of fifteen years with a non-parole period of seven years. This appeal is against conviction only.
The offence was committed on 12 February 1988 when the appellant was 18 years old. His involvement in the offence came to light some eleven years later when fingerprints found on a beer can at the scene of the crime were identified as belonging to him.
He had attended a party at Chatswood. During the course of the evening he drank a considerable quantity of beer and also inhaled a line of amphetamine. Some time later in the evening he was attempting to hitch a ride to his home at Beacon Field. He was picked up by the deceased who took him to his (the deceased’s) home at Harbord.
The deceased, Mr Leo Press, was a 63 year old man who lived with his brother and niece. There was evidence that police investigations revealed that it was his practice to go out late at night to solicit sex from hitchhikers and the like. In circumstances where his brother was at work on nightshift at their bakery, and having earlier in the evening dropped his niece off at the airport to go home to her parents a Quirindi, (i.e., knowing no one was at home), he took the appellant to his home. The appellant gave evidence that the deceased picked him up while he was hitching a ride home and invited him to the deceased’s home at Harbord to have “more beers”. Not long after drinking the beer, the appellant felt unwell and said that he had to “crash”. He woke up to discover the deceased playing…

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 Hodge

Details

AGLC: R v Hodge [2002] NSWCCA 10
Case: [2002] NSWCCA 10
Decision Date: 15 February 2002

CaseChat Overview and Summary

The matter before the court involved a criminal trial where Hodge, the respondent, was charged with various offences. The crux of the dispute lay in the trial judge's summing up regarding Hodge's credibility and his alleged lies, particularly those that might be seen as indicative of consciousness of guilt. The High Court of Australia was called upon to adjudicate on the sufficiency of the trial judge's directions to the jury concerning these matters.

The legal issues before the court revolved around whether the trial judge's summing up adequately addressed the concept of lies as they pertain to a witness's credit, particularly when those lies are potentially indicative of consciousness of guilt. Additionally, the court needed to determine if the trial judge's directions complied with the requirements set out in the case of Zoneff v The Queen and whether any failure to comply necessitated a retrial under the Criminal Appeal Rules.

The court held that the summing up did not sufficiently address the legal principles relevant to assessing Hodge's credibility based on his alleged lies. The court found that the trial judge did not adequately direct the jury on how to approach the issue of lies as evidence of consciousness of guilt, which is a matter going to credit rather than to guilt. The court concluded that the failure to provide appropriate directions meant that the trial was unfair, and thus, under the Criminal Appeal Rules, the conviction should be quashed and a retrial ordered.

Orders