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R v McIntyre

R v McIntyre

Case [2000] NSWCCA 6 24 February 2000

Appeal

Jurisdiction

Misconduct of Counsel

Miscarriage of Justice

Judicial Misdirection

Criminal Law

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Reported Decision: 111 A Crim R 211

New South Wales

Court of Criminal Appeal

CITATION: R v McIntyre [2000] NSWCCA 6

FILE NUMBER(S): CCA 60546/98

HEARING DATE(S): 21/10/99

JUDGMENT DATE:
24 February 2000

PARTIES :

Regina
Stuart James McINTYRE

JUDGMENT OF: Sully J at 1; Hulme J at 2; Hidden J at 50

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Naughton DCJ

COUNSEL : Crown: P G Berman
Appellant: G P Craddock

SOLICITORS: Crown: S E O'Connor
Appellant: T A Murphy

DECISION: Appeal allowed; Convictions and sentences consequent thereon quashed; A new trial of the Appellant

- 26 -

IN THE COURT OF
CRIMINAL APPEAL
No: 60546/98

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000

REGINA -v-Stuart James McINTYRE

JUDGMENT

1    SULLY J: I agree with Hulme J.
IN THE COURT OF
CRIMINAL APPEAL
No: 60546/98

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000

REGINA -v-Stuart James McINTYRE

JUDGMENT

2    HULME J: On 21 July 1998 the Appellant was convicted by a jury on two counts, one to the effect that he broke and entered a dwelling house and therein maliciously damaged property by fire; and the second, that he stole a motor vehicle in that he took it and drove it without the consent of the owner. The substantive issues in the trial were whether the Crown could prove that a fire which occurred had been started by the Appellant; and in relation to the second count, whether the Crown could prove both that the Appellant was not a part owner of the vehicle, and that he had no bona fide claim of right to drive it.
3    On 15 September 1998 the Appellant was sentenced to penal servitude for a minimum term of 3 years and an additional term of 2 years in respect of the first charge; and to a fixed term of 12 months’ imprisonment on the second, such term to run concurrently.
4    On 21 October last, an appeal to the Court was heard. Taking the view that the appeal should succeed, the Court then made orders that the appeal be allowed; that the convictions and sentences consequent thereon be quashed; and that there should be a new trial of the Appellant. These reasons are those which the Court said would be published later.
5    At the time of the incidents, namely 7 June 1997, the dwelling house was occupied by a Miss Mandy West and her children and, on the Crown case, she was also the owner of the motor vehicle. Commencing in about 1994 the Appellant became the de-facto partner of Miss West. They separated in November 1995, resumed cohabitation in June 1996 and separated again in April 1997. According to the evidence of Miss West, their contact thereafter was marked by threats and abuse and numerous phone calls initiated by the Appellant. However, it does not appear that all contact was of that description.
6    Be that…

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 McIntyre

Details

AGLC: R v McIntyre [2000] NSWCCA 6
Case: [2000] NSWCCA 6
Decision Date: 24 February 2000

CaseChat Overview and Summary

Stuart James McIntyre was convicted by a jury in the District Court of breaking and entering a dwelling house and maliciously damaging property by fire, and of stealing a motor vehicle by taking and driving it without the consent of the owner. The substantive issues in the trial were whether the Crown could prove that the fire had been started by McIntyre, and whether the Crown could prove that he was not a part owner of the vehicle and had no bona fide claim of right to drive it. The Court of Criminal Appeal heard McIntyre's appeal on 21 October 1999 and allowed the appeal, quashing the convictions and sentences and ordering a new trial. The Court found that the trial miscarried due to the conduct of McIntyre's counsel, which was gratuitously rude and expressed personal views. The Court also found that the trial judge erred in criticizing McIntyre for not suggesting to police that the fire may have been caused by the owner of the house, and in directing the jury to consider whether payment by McIntyre towards the purchase of a motor vehicle may have been by way of a gift to her. The Court found that these errors may have effectively taken away from the jury's consideration a major part of McIntyre's defence. The final orders of the Court were that the appeal be allowed, the convictions and sentences consequent thereon be quashed, and that there should be a new trial of McIntyre.

Orders