R v Ingenhoff
[2000] NSWCCA 371
•14 September 2000
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: REGINA v. INGENHOFF [2000] NSWCCA 371
FILE NUMBER(S):
No. 60601 of 1999
HEARING DATE(S): Thursday 14 September 2000
JUDGMENT DATE: 14/09/2000
PARTIES:
REGINA v.
INGENHOFF, Frank
JUDGMENT OF: Priestley JA Greg James J Kirby J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 98/31/0226
LOWER COURT JUDICIAL OFFICER: Job, DCJ.
COUNSEL:
Crown: W.G. Dawe, QC.
App: S.R. Norrish, QC.
SOLICITORS:
Crown: S.E. O'Connor
App: D.J. Humphreys
CATCHWORDS:
Criminal law - appeal - inconsistent verdicts - new trial - discretion - effect of order.
LEGISLATION CITED:
Criminal Appeal Act 1912
DECISION:
Appeal upheld; conviction set aside; new trial ordered
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
No. 60601 of 1999
CORAM: PRIESTLEY, JA.
GREG JAMES, J.
KIRBY, J.
THURSDAY 14 SEPTEMBER 2000
REGINA v. FRANK INGENHOFF
JUDGMENT
PRIESTLEY, JA: I will ask Greg James, J. to give the reasons of the court. We have had a brief opportunity of consulting and we are agreed there should be a new trial.
GREG JAMES, J: This is an appeal brought from a conviction on one count of malicious wounding. The appellant was tried jointly with Rodney David Hollier. The latter appealed to this court from his conviction on that count. That appeal was the subject of a judgment of this court on 15 June 2000: Regina v. Hollier [2000] NSWCCA 225. The circumstances of the trial and how it came about that the applicant and his co-accused were so convicted are set forth in that judgment. The court concluded that the conviction should be overturned as inconsistent and unable to stand in consequence of the acquittal of both accused on a charge of possession of a firearm. The malicious wounding was said to have been occasioned by the use of that firearm.
There being no way that a rational explanation could afford a basis for the different verdicts to stand together perceivable by the court, it was necessary to allow the appeal. Similarly, it is necessary to allow the present appeal.
The question arose in Hollier (supra) as to what course the court should take. In that case in the judgment I delivered, with which the Chief Justice and Newman, J. agreed, I said:-
"The question then arises as to what course this court should take. I have not concluded that there is such legal inconsistency between the verdicts as was referred to in Mackenzie (supra) and as would show an inconsistent record in this court. It may be that at a new trial questions of substantial difficulty might arise as to what evidence might be admitted and what direction might be given to the jury to avoid the canvassing of the acquittal and in that regard it may be that attention will have to be given to the principles referred to in the High Court's decisions in Garrett v. The Queen (1978) 139 CLR 437; Storey v. The Queen (1978) 140 CLR 364 and Rogers v. The Queen (1994) 181 CLR 251.
However, it does not seem to me that the fact that a new trial might present complex or difficult questions is a matter which should, in the light of a verdict which, to an extent, when considered on its own, is explicable, be such as to stand in the way of an exercise of discretion in favour of the Director. It may be that having regard to these matters and having regard to the complex questions of presentation such a trial might involve, the Director might consider his position but that is purely a matter for him as the order made by this court in respect of a new trial is not mandatory but facultative."
On the present appeal coming forward for hearing, the Crown conceded that since Mr. Ingenhoff was, at trial, alleged to be the person who had the gun, this case so sufficiently shared the circumstances exposed in the judgment to which I have referred, that the appeal had to succeed. Mr. Norrish, QC., who appears for the appellant, has, however, submitted that the ultimate result should be different in that, in his submission, the court should not make the order for a new trial that was made in Hollier (supra). He draws our attention to s.8(1) of the Criminal Appeal Act 1912 which is as following:-
"On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."
The order for a new trial in this court is an order that, by reason of that section, may be made in the discretion of the court having regard to all the circumstances, if the court finds that the miscarriage detected, occasioning the success of the appeal, is such as more adequately can be remedied by the taking of that course. It is an order which permits the Crown the possibility of a new trial, it does not require it, and it would permit the Crown here that possibility in circumstances where it cannot be said that the effect of the acquittals is such that no appropriate charge can be brought. In my judgment in Hollier (supra) I had concluded that it might be available to the Crown, consistent with those principles referred to by the High Court in the cases I have cited such as Garrett v. The Queen (1978) 139 CLR 437; Storey v. The Queen (1978) 140 CLR 364 and Rogers v. The Queen (1994) 181 CLR 251, to bring some case and if it was, the Crown should not be precluded from seeking to do so by the order of this court. I see no basis to distinguish the circumstances of Mr. Ingenhoff's appeal from those to which I referred in Mr. Hollier's appeal.
In my view there should be the option available to the Crown of a new trial of which it might avail itself if it can come within the appropriate principles.
I would propose that the appeal be upheld and that there be a new trial.
PRIESTLEY, JA: I agree.
KIRBY, J: I also agree.
PRIESTLEY, JA: The orders of the court, therefore, are appeal upheld, conviction set aside and a new trial ordered.
LAST UPDATED: 04/10/2000
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