R v Lavender - [2002] NSWCCA 511

CITATION: R v Lavender [2002] NSWCCA 511

FILE NUMBER(S): CCA 60456/02

HEARING DATE(S): 16 December 2002

JUDGMENT DATE:
16 December 2002

PARTIES :

R v Wayne Kelvin Lavender

JUDGMENT 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 - Respondent

SOLICITORS: D J Humphreys, Legal Aid - Applicant
S E O'Connor - Respondent

CATCHWORDS: 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)

GILES JA
JAMES J
HIDDEN J
Monday 16 December 2002

REGINA v WAYNE KELVIN LAVENDER

Judgment

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,…

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 Lavender

Details

AGLC: R v Lavender [2002] NSWCCA 511
Case: [2002] NSWCCA 511
Decision Date: 16 December 2002

CaseChat Overview and Summary

The case of R v Lavender was heard before the court, where the defendant, Lavender, appealed against an interlocutory judgment or order that was made. The dispute centred on an evidentiary ruling made during the trial proceedings. The nature of the appeal was to challenge the admissibility of certain evidence presented by the Crown. The court was required to determine whether the trial judge correctly admitted the evidence in question.

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