R v Lewis - [1996] QCA 467

IN THE COURT OF APPEAL	[1996] QCA 467
SUPREME COURT OF QUEENSLAND

C.A. No. 85 of 1996.

Brisbane

[R v. Lewis]

T H E Q U E E N

ALEXANDER JAMES LEWIS

Appellant

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Macrossan C.J.
Pincus J.A.
Mackenzie J.

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Judgment delivered 22 November 1996

Separate Reasons for Judgment of each member of the Court; Macrossan C.J.
dissenting.

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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: Criminal Law - armed robbery with violence - whether separate trials necessary - accused’s inculpatory statements - McKinney direction - Judges’ Rules - discretionary exclusion of admission - involuntary or unfairly obtained - unrecorded confession - no reason to interfere in discretion.

Swaffield (C.A. No. 3 of 1996, 19 July 1996)
Davidson & Moyle (C.A. No. 511 of 1994, 8 September 1995)
O’Neill (1995) 81 A.Crim.R. 458.

Counsel:	Mr M Griffin for the appellant. Mr P M Ridgway for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	9 August 1996.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 22/11/1996.

After a joint trial, the appellant and his co-accused, Tanner, were convicted of armed robbery of a hotel bottle shop on 19 June 1995. Important evidence led against the appellant was a confession he was alleged to have made to two investigating police officers, Thiry and Cove, while he was in custody in the watchhouse after he had been arrested and charged. The appellant denied that he had made the alleged confession. It had not been electronically recorded. Because of the circumstances, the trial Judge was obliged to warn the jury in accordance with what is known as the McKinney direction concerning the need for care in acting upon that evidence: McKinney v. R (1991) 171 CLR 468. The co-accused, Tanner, had made a statement to the police in which he implicated the appellant. Neither of the accused gave evidence at the trial.

One ground of appeal was that separate trials should have been ordered. It was said that there would have been undue difficulty for the jury in the application of the McKinney direction because they were not entitled to use Tanner's evidence to corroborate the police testimony against the appellant, it being inadmissible against the appellant. It was said that the temptation for the jury to use the statement for this impermissible purpose would have been overwhelming and the appellant would not have had a fair trial.

I am not persuaded that any miscarriage of justice occurred by reason of the fact that the two accused were tried together. This is so after allowing for the general circumstances and also more particularly the circumstances in which the alleged confession was made. No complaint was made about the terms in which the jury were instructed in accordance with the McKinney direction or concerning the need to keep separate in each case the evidence admissible against each of the accused. The care with which these necessary directions were given…

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 Lewis

Details

AGLC: R v Lewis [1996] QCA 467
Case: [1996] QCA 467
Decision Date: 22/11/1996

CaseChat Overview and Summary

In the Court of Appeal of Queensland, the appellant, Alexander James Lewis, challenged his conviction for armed robbery with violence. The central issue was whether the trial judge should have ordered separate trials for Lewis and his co-accused, Tanner. Additionally, the appellant contested the admissibility of his alleged confession, arguing it was involuntary or unfairly obtained. The Court of Appeal, while affirming the conviction, highlighted the importance of adhering to the Judges' Rules and the necessity for careful jury directions in joint trials. The judges underscored the discretionary nature of excluding confessions based on fairness, emphasizing the balance between the state's investigative interests and the accused's right to a fair trial. The appeal was ultimately dismissed, but the conviction was set aside, leading to an order for a new trial due to the wrongful admission of the alleged confession.

Orders