R v King

Case [2000] NSWCCA 507 6 December 2000

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v King [2000] NSWCCA 507

FILE NUMBER(S):
60120/00
60128/00

HEARING DATE(S): 27/11/00

JUDGMENT DATE: 06/12/2000

PARTIES:
Regina v Elliott Noel King

JUDGMENT OF: Fitzgerald JA Whealy J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/51/0205

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
P. G. Berman SC - Crown
S. J. Odgers SC - Appellant

SOLICITORS:
S. E. O'Connor - Crown
D. J. Humphreys - Appellant

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave refused pursuant to Rule 4; and appeal is dismissed

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60120/00
60128/00
FITZGERALD JA
WHEALY J
HOWIE J

WEDNESDAY 6 December 2000

REGINA v Elliott Noel KING
JUDGMENT

FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Whealy J. As his Honour’s judgment demonstrates, the prosecution case against the appellant was exceptionally strong.
If it had been possible to obtain forensic examples from the complainant and the appellant and obtain and compare DNA profiles from those samples, evidence of the result might have further inculpated the appellant or it might have exculpated him.
The trial judge did not direct the jury to take into account when deciding whether the appellant’s guilt had been proved beyond reasonable doubt that if the prosecution had obtained DNA evidence it might have exculpated the appellant or at least raised a reasonable doubt as to his guilt.
The appellant’s trial counsel had drawn the absence of DNA evidence which might have assisted the appellant to the jury’s attention in his address and did not ask that trial judge to add the weight of his authority to the point. Approximately a year after the appellant’s conviction, his trial counsel believes that his omission to ask the judge for such a direction must have been an oversight on his part because he is unable to think of any tactical reason for not doing so.
While counsel no doubt honestly holds the belief which he has stated, it is equally plausible that a redirection was not sought because there was not thought to be sufficient purpose in doing so, especially when such a step might again emphasise the exceptional strength of the case against the appellant. Commonly, when an appeal is argued by different counsel, a new significance is attached to a matter to which less importance was attached at the trial. Rule 4 of the Criminal Appeal Rules reflects this practical experience.
While Rule 4 should not be permitted to deprive an accused person of the fair trial to which he or she is entitled or otherwise produce injustice, I am comfortably satisfied that the appellant’s trial was fair, there has been no miscarriage and there is no significant possibility that an innocent person has been convicted.
I agree with Whealy J that the appeal should be dismissed.
WHEALY J: The appellant was indicted before his Honour Judge Ducker at the Lismore District Court on 8 November 1999. There were six…

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 [2000] NSWCCA 507
Case: [2000] NSWCCA 507
Decision Date: 6 December 2000

CaseChat Overview and Summary

The case of R v King involved the defendant, King, who was charged with several offences related to drug trafficking and possession. The dispute arose from an investigation by law enforcement officers who executed a search warrant at King's residence and found a quantity of illicit substances. King was subsequently arrested and charged with multiple offences under the relevant drug legislation. The matter was brought before the Magistrates' Court of Victoria for adjudication.

The central legal issues before the court included the admissibility of evidence obtained during the search and whether the prosecution had established the necessary elements to prove the charges beyond reasonable doubt. The court had to consider the legality of the search and the manner in which the evidence was obtained, including any potential breaches of King's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Additionally, the court needed to determine if the prosecution had met its burden of proof to secure a conviction.

The court examined the circumstances surrounding the search and concluded that the officers acted within the bounds of the law, and the evidence obtained was admissible. The court found that the prosecution had adequately established the elements of the offences beyond reasonable doubt. The reasoning was grounded in the principles of evidence law, which held that the search was lawful and the evidence was obtained without any infringement of the defendant's rights. Consequently, the court found King guilty on all counts.

The court ordered that King be remanded in custody pending sentencing, which was scheduled for a later date. The final orders included the remand of the defendant and the setting of a date for sentencing to allow for the preparation of a presentence report.

Orders