R v King

Case [2004] NSWCCA 20 20 February 2004

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Reported Decision:
59 NSWLR 515
144 A Crim R 405

New South Wales

Court of Criminal Appeal

CITATION: Regina v King [2004] NSWCCA 20

HEARING DATE(S): 10 December 2003

JUDGMENT DATE:
20 February 2004

JUDGMENT OF: Grove J at 1; Smart AJ at 21; Davidson AJ at 119

DECISION: Appeal allowed, conviction quashed, new trial ordered.

CATCHWORDS: Robbery alternative verdict at common law to armed robbery with offensive weapon - circumstances in which judge should leave lesser offence than that charged to jury - principle extends beyond murder/manslaughter - importance of jury having choice where legitimate

LEGISLATION CITED: Crimes Act 1900
Drug Misuse & Trafficking Act 1985 (NSW)

CASES CITED: Archbold Criminal Pleading Evidence & Practice 42nd ed (1985) para 7-44
Benbolt (1993) 67 A Crim R 11
Elfar (2000) 115 A Crim R 64
Elliott and Hitchins [1983] 3 NSWLR 318
Fairbanks [1986] 1 WLR 1202
Gammage v The Queen (1969) 122 CLR 444
Gilbert v The Queen (2000) 201 VLR 414
Jones v Dunkel
Gillard v The Queen [2003] HCA 64
Maxwell 1988 WLR 1265
Mraz v The Queen (1955) 93 CLR 493
Pemble v The Queen 124 CLR 107
Rehavi (1998) 101 A Crim R 569
R v Cameron (1983) 2 NSWLR 66
R v Fowler [2003] NSWCCA 321
R v Parrott (1913) 8 Cr App R 186
Reg v Saunders (1986) 1 WLR 1163

PARTIES :
Regina v Mathew James King

FILE NUMBER(S): CCA 60309/03

COUNSEL: (A) M Ramage QC
(C) D Arnott

SOLICITORS: (A) M Rumore
(C) C K Smith

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0001

LOWER COURT
JUDICIAL OFFICER : English DCJ

IN THE COURT OF
CRIMINAL APPEAL

GROVE J

SMART AJ

DAVIDSON AJ

Friday, 20 February 2004

Regina v MATHEW JAMES KING

Judgment

1. GROVE J: I have had the opportunity of reading in draft form the judgments of Smart AJ and Davidson AJ. As they are not in agreement as to the outcome of the appeal I should express reasons for my own conclusions. This can be done relatively briefly as I adopt, gratefully, the detail of facts and issues collated by Smart AJ.

2. Ground 1 asserts that the learned trial judge was in error in refusing to direct the jury or leave open to them a verdict of robbery on the indictment which charged armed robbery. Pemble v The Queen 1971 124 CLR 107 stands as authority for the proposition that a judge must be astute to secure for an accused a fair trial according to law which includes, where appropriate, irrespective of the tactics adopted by counsel, a necessity to instruct a jury upon possible facts leading to an available outcome in addition to a count specifically charged.

3. In R v Elfar 2000 115 A Crim R 64 Sperling J, rejecting an argument that all alternative lesser offences prescribed by law must be left to the jury in every case, commented that different considerations applied to murder and manslaughter because of historical concepts to do…

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 King

Details

AGLC: R v King [2004] NSWCCA 20
Case: [2004] NSWCCA 20
Decision Date: 20 February 2004

CaseChat Overview and Summary

In the case of R v King, the respondent was charged with armed robbery with an offensive weapon. The respondent applied for an alternative verdict of robbery to be left to the jury. The High Court of Australia considered the appropriate circumstances under which a judge should leave a lesser offence than that charged to the jury. The High Court held that the principle of allowing a lesser offence to be left to the jury extends beyond just murder and manslaughter and applies to any offence where a lesser included offence is legitimate. The court held that the judge should leave the lesser offence to the jury where there is a legitimate basis for doing so and where it is in the interests of justice.

The court emphasised the importance of the jury having a choice between the greater and lesser offences where there is a legitimate basis for doing so. The court held that the judge should leave the lesser offence to the jury if there is evidence that could support a conviction for the lesser offence and if there is a reasonable possibility that the jury could find the accused guilty of the lesser offence. The court held that the judge should not leave the lesser offence to the jury if there is no evidence that could support a conviction for the lesser offence or if there is no reasonable possibility that the jury could find the accused guilty of the lesser offence.

The court held that the judge in this case should have left the alternative verdict of robbery to the jury. The court held that there was evidence that could support a conviction for robbery and that there was a reasonable possibility that the jury could find the accused guilty of robbery. The court held that the judge's failure to leave the alternative verdict to the jury was a misdirection and that the conviction should be quashed. The court held that the case should be remitted to the Court of Criminal Appeal for further consideration.

Orders