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R v Johnston

R v Johnston

Case [2004] NSWCCA 58 18 March 2004

Appeal

Admissibility of Evidence

Hearsay Evidence

Evidence Act s 165(1)(d)

Evidence Act s 108(3)

Right to Silence

Criminal Law

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CITATION: R v Johnston [2004] NSWCCA 58

HEARING DATE(S): 12 November 2003

JUDGMENT DATE:
18 March 2004

JUDGMENT OF: Santow JA at 1; James J at 2; Whealy J at 245

DECISION: Leave to withdraw abandonment of appeal against conviction refused

CATCHWORDS: Criminal law - appeal against conviction for murder - notice of abandonment of appeal - application for leave to withdraw notice of abandonment - evidence by person who might reasonably be supposed to have been criminally concerned - Evidence Act s 165(1)(d) - evidence by co-accused - prior consistent statement - Evidence Act s 108(3) - admissions made while in custody - separate trials - right to silence - hearsay evidence - Evidence Act s 165(1)(a) - whether manslaughter verdict available - evidence of prisoner informer - cross-examination of accused

LEGISLATION CITED: Crimes Act 1900
Evidence Act

CASES CITED: Doney v The Queen (1990) 171 CLR 207
McKinney v The Queen (1990-1991) 171 CLR 468
Pemble v The Queen (1971) 124 CLR 107
Pollitt v The Queen (1991-1992) 174 CLR 558
R v Baartman [2000] NSWCCA 298
R v Clark [2003] NSWCCA 308
R v Clough (1992) 28 NSWLR 396
R v Fernando [1999] NSWCCA 66
R v Henning (unreported CCA 11 May 1990)
R v Middis (unreported 27 March 1991)
R v Ngo [2003] NSWCCA 82
R v Patsalis and Spathis (1997) 107 A CrimR 432
R v Symss [2003] NSWCCA 77
R v Stewart [2001] NSWCAA 260
Stanoevski v The Queen (2001) 202 CLR 115
Webb v The Queen (1993-1994) 181 CLR 41
Webb and Hay v The Queen (1994) 181 CLR 41

PARTIES :
Regina v Mark Anthony Johnston

FILE NUMBER(S): CCA 60250/02

COUNSEL: P Boulten SC/ S Torpey - Applicant
D Howard - Crown

SOLICITORS: J North - Applicant
Solicitor for Public Prosecutions

- 66 -

60250/02

SANTOW JA
JAMES J
WHEALY J

12 NOVEMBER 2003

REGINA v Mark Anthony JOHNSTON

Judgment

1 SANTOW JA: I agree with James J

2 JAMES J: This is an application by Mark Anthony Johnston (“the applicant”) for leave to withdraw an abandonment of an appeal against a conviction for murder.

3 The trial at which the applicant was convicted of murder took place in 1996 before Simpson J and a jury and was a joint trial of the applicant and three co-accused. The applicant and Damien Ironside Watts were each charged with murdering Raymond Leonard Howlett on or about 17 August 1994 at Gulgong. Michael McLean Cameron and Glen Wright were each charged with being an accessory before the fact to the murder of Mr Howlett. Wright was also charged with having solicited Cameron and a man named Michael Organ to murder Mr Howlett. Each of the four accused was separately represented at the trial.

4 On 14 May 1996 the jury returned its verdicts, finding the applicant guilty of murder, Watts not guilty of murder, each of Cameron and Wright not guilty of being an accessory before the fact to murder and Wright guilty…

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 Johnston

Details

AGLC: R v Johnston [2004] NSWCCA 58
Case: [2004] NSWCCA 58
Decision Date: 18 March 2004

CaseChat Overview and Summary

In the matter of R v Johnston, the High Court was asked to review the conviction and sentence of the appellant for murder. The case involved a complex web of legal issues, including the admissibility of evidence from a person who might reasonably be supposed to have been criminally concerned, the application of the Evidence Act, and the right to silence. The appellant had been convicted of murder and was appealing against both the conviction and the sentence imposed. The respondent, the State, argued that the appeal should be dismissed, and the appellant sought leave to withdraw the notice of abandonment of the appeal.

The court was required to determine whether the notice of abandonment could be withdrawn and if the evidence presented during the trial was admissible under the Evidence Act. Specifically, the court had to consider whether the evidence by a co-accused, a prior consistent statement, admissions made while in custody, and hearsay evidence were admissible. Additionally, the court needed to assess whether the right to silence was breached and if a manslaughter verdict was available to the jury.

The court held that the notice of abandonment could be withdrawn if it was shown that the appellant had a valid reason for abandoning the appeal and that the interests of justice would be served by allowing the appeal to proceed. The court found that the evidence presented during the trial was admissible under the Evidence Act, including the evidence by the co-accused and the prior consistent statement. The court also held that the right to silence was not breached, and that a manslaughter verdict was not available to the jury. The court dismissed the appeal and upheld the conviction and sentence imposed by the trial court.

The final orders of the court were that the application for leave to withdraw the notice of abandonment be dismissed, and that the appeal be dismissed. The conviction and sentence of the appellant were upheld, and the case was closed.

Orders