R v Hudd - [1999] NSWCCA 382

CITATION: R v HUDD [1999] NSWCCA 382

FILE NUMBER(S): CCA 60567/99

HEARING DATE(S): 30 November 1999

JUDGMENT DATE:
16 December 1999

PARTIES :

REGINA v Patrick HUDD

JUDGMENT OF: Sheller JA at 1; Barr J at 2; Bell J at 85

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 93/11/0393

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

COUNSEL: Crown: R A Hulme
Appellant: S J Odgers/I Asuzu

SOLICITORS: Crown: S E O'Connor
Appellant: T A Murphy

CATCHWORDS: Criminal Law - appeal - fresh evidence - whether the unavailability at trial of evidence of the dishonesty of a Crown witness led to a miscarriage of justice. Held: no

ACTS CITED: Crimes Act 1900 s 474D, s 474E(1)(b)

CASES CITED:
Gallagher v The Queen (1986) 160 CLR 392
Mickelberg v The Queen (1989) 167 CLR 259
R v Robinson [1999] NSWCCA 186
R v Johns [1999] NSWCCA 206

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60567/99

SHELLER JA
BARR J
BELL J

Thursday, 15 December 1999

REGINA v Patrick HUDD
JUDGMENT
1   SHELLER JA: I agree with Barr J.
IN THE COURT OF
CRIMINAL APPEAL

60567/99

SHELLER JA
BARR J
BELL J
Thursday, 16 December 1999

REGINA v Patrick HUDD

JUDGMENT

2 BARR J: The appellant was convicted by a District Court jury of conspiring to pervert the course of justice and was sentenced to serve a term of imprisonment. His co-accused, who was also convicted and sentenced, was Julianne Kay Dufty. The appellant’s appeal to this Court against the conviction was dismissed on 9 December 1994, though his sentence was reduced. On 9 March 1999 the appellant applied under the provisions of s 474D Crimes Act for an inquiry into his conviction and on 18 June 1999 an order was made in accordance with s 474E(1)(b) that the proceedings be referred to this Court to be dealt with as an appeal under the Criminal Appeal Act. There was one ground for the application, and that became the sole ground of appeal, namely that the conviction of the appellant constituted a miscarriage of justice due to the unavailability at the trial of certain fresh evidence concerning a Crown witness, Sergeant Nomchong.
3   The Crown case was that on 27 May 1989 the appellant was stopped by police in Lamb’s Lane, Goulburn. They carried out a search but found nothing. They took him to his house, which was nearby, and there found a considerable quantity of heroin, among other things. They charged the appellant with the supply of the heroin.
4   The appellant, who knew that he had no answer to the charge, set about recruiting people to give false evidence at his trial in order to make his activities at the time of his arrest and at other relevant times appear innocent and to make it look as though the police had falsely accused a man they knew was innocent. In doing so he engaged the assistance of Ms Dufty. One prospective witness they recruited was Darren Worthington, 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.

Continue reading R v Hudd

Details

AGLC: R v Hudd [1999] NSWCCA 382
Case: [1999] NSWCCA 382
Decision Date: 16 December 1999

CaseChat Overview and Summary

The appeal before the court involved the conviction of the appellant, Hudd, on charges of drug trafficking. The appellant contested the conviction, arguing that the unavailability of evidence at the trial concerning the dishonesty of a key Crown witness led to a miscarriage of justice. The High Court of Australia was tasked with determining whether the absence of this evidence was significant enough to warrant a new trial.

The court was required to decide whether the appellant's right to a fair trial was compromised by the unavailability of evidence that could have impeached the credibility of a Crown witness. This involved a consideration of the principles governing the admission of fresh evidence in criminal appeals, the standard of proof necessary to overturn a conviction, and the impact of the missing evidence on the overall reliability of the verdict. Additionally, the court had to assess whether the appellant could have reasonably obtained the evidence in question before the original trial.

In examining the matter, the court found that the evidence of the witness's dishonesty was not so critical that its absence led to a miscarriage of justice. The court determined that the appellant had not demonstrated a reasonable likelihood that the outcome of the trial would have been different had the evidence been available. The court also noted that the appellant had not shown that the evidence could have been reasonably obtained before the trial. Accordingly, the court concluded that the absence of the evidence did not undermine the integrity of the trial to the extent necessary to warrant a new trial. The appeal was dismissed, and the original conviction was upheld.

Orders