CITATION: R v Lavender [2002] NSWCCA 511 FILE NUMBER(S): CCA 60456/02 HEARING DATE(S): 16 December 2002 JUDGMENT DATE:
16 December 2002PARTIES :
R v Wayne Kelvin LavenderJUDGMENT OF: Giles JA at 1; James J at 15; Hidden J at 16
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : DC 02/31/0066 (Newcastle) LOWER COURT JUDICIAL
OFFICER :Coolahan DCJ
COUNSEL : P J D Hamill - Applicant
P E Barrett - RespondentSOLICITORS: D J Humphreys, Legal Aid - Applicant
S E O'Connor - RespondentCATCHWORDS: Criminal law - appeal against interlocutory judgment or order - evidentiary ruling - submitted that evidence irrelevant because Crown case could not be made out in other respects - this submission not put to trial judge - no interlocutory judgment or order - appeal dismissed. ND CASES CITED: R v Bozatsis and Spanakarkis (1997) 97 A Crim R 296. DECISION: Appeal dismissed.
CCA 60456/02
DC 02/31/0066 (Newcastle)Monday 16 December 2002GILES JA
JAMES J
HIDDEN J
1 GILES JA: This is an appeal pursuant to s 5F of the Criminal Appeal Act 1912. The right of appeal is "against an interlocutory judgment or order", see s 5F(3), and requires either leave of this Court or the certificate of the trial judge that the judgment or order is a proper one for determination on appeal. The trial judge gave a certificate, but it is still necessary that the judicial act the subject of the appeal was an interlocutory judgment or order. For the reasons which follow, in my opinion it was not.
2 The appellant was charged with manslaughter and in the alternative with culpable driving. It is the charge of manslaughter which is presently relevant. He and another man were employed to operate front-end loaders at a sand mining site. The two employees were on a lunch break when they noticed a group of boys on the site. They drove their loaders in the direction of the boys, who ran in different directions. The appellant followed two of the boys, Michael Milne and Aaron Roddam, and drove his loader into an area of regenerating bushland. Michael hid in that area and Aaron ran elsewhere in the area. Michael was killed when the loader ran over him.
3 The Crown put its case of manslaughter on two alternative bases. First, it said that the act of the appellant caused Michael's death and that the appellant was guilty of manslaughter because it was an unlawful and dangerous act carrying with it an appreciable risk of serious injury. In the alternative, it said that the appellant was guilty of manslaughter by criminal negligence, which for present purposes need not further be considered.
4 In the course of the evidence of Aaron, after he had spoken of going into the bush a distance and seeing the loader go into the bush, he was asked how he felt when he saw that happen. Objection was taken to the question,…
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- R v Lavender [2002] NSWCCA 511
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- [2002] NSWCCA 511
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CaseChat Overview and Summary
The primary legal issue before the court was whether the evidence was relevant and admissible under the rules of evidence. The defence argued that the evidence was irrelevant as the Crown's case could not be substantiated in other respects. However, this specific submission was not made to the trial judge at the time of the evidentiary ruling. Consequently, the court considered whether the appeal could proceed against an interlocutory judgment or order that had not been formally made. Given that the ruling in question was not an interlocutory judgment or order, the appeal was dismissed.
The court held that since the submission regarding the relevance of the evidence was not put to the trial judge, it could not be considered on appeal. The court found that the appeal was misconceived, as the ruling in question was not an interlocutory judgment or order but rather a part of the ongoing trial proceedings. Therefore, the appeal was dismissed, and the evidentiary ruling stood.
No further orders were made by the court in relation to the appeal. The court's decision confirmed that appeals against interlocutory judgments or orders must be timely and appropriately framed, and submissions must be made to the trial judge to be considered on appeal.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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