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R v Richards

R v Richards

Case [2002] NSWCCA 38 28 February 2002

Jurisdiction

Admissibility of Evidence

Miscarriage of Justice

Criminal Law

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Reported Decision:
(2002) 128 A Crim R 204

New South Wales

Court of Criminal Appeal

CITATION: R v Richards [2002] NSWCCA 38

FILE NUMBER(S): CCA 60635 of 2000

HEARING DATE(S): 13 February 2002

JUDGMENT DATE:
28 February 2002

PARTIES :

REGINA v WILLIAM JOHN RICHARDS

JUDGMENT OF: Hodgson JA at 1; Levine J at 2; Howie J at 43

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/61/0020

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL :
W Dawe QC
(Crown)
A Haesler
(Appellant)

SOLICITORS:
S E O'Connor
(Crown)
D J Humphreys
(Appellant)

CATCHWORDS: Directions - no evidence of any statement by accused upon arrest - accused gives no evidence at trial - absence of directions - no application for directions - trial counsel's affidavit - whether miscarriage of justice

CASES CITED:
Azzopardi v R [2001] HCA 25; (2001) 179 ALR 349; (2001) 119 A Crim R 8
Grey v R [2001] HCA 65
OGD (1997) 45 NSWLR 744
Queen v Bozkus [2001] NSWCCA 68
R v Moussa [2001] NSWCCA 427
Regina v Bozzola [2001] NSWCCA 8
Regina v Giri [2001] NSWCCA 197
RPS (2000) 199 CLR 620

DECISION: Conviction appeal dismissed - Leave granted for sentence appeal, appeal dismissed.

60635 of 2000

HODGSON JA
LEVINE J
HOWIE J
28 February 2002

REGINA v RICHARDS William John

Judgment

1 HODGSON JA: I agree with Levine J.

2 LEVINE J: On 31 May 2000, the appellant, William John Richards and his cousin, Kevin Claude Richards, were indicted before his Honour Judge Coleman in the District Court at Dubbo charged with robbery in company. On 5 June 2000 the jury found the appellant guilty, he was convicted and on 1 September 2000 sentenced to a term of imprisonment which is the subject of an application for leave to appeal.

3 It was the Crown case that a Ms Kim Lyons (who did not appear at trial) befriended the victim Mr Ballity at a hotel in Dubbo. This was part of a joint enterprise which was to result in Mr Ballity being robbed. William and Kevin Richards were also in the hotel and spoke with the victim and Ms Lyons who was known to them. Ms Lyons then lured the victim outside the hotel where he was set upon by her, a man with a goatee beard, another with a cap and possibly a third man. A fourth man with a crew cut stood by.

4 On the second day of the trial the Crown discontinued proceedings against Kevin Richards on his undertaking to give evidence against the appellant.

5 Kevin Richards gave evidence substantially in accordance with that of Mr Ballity. He, however, claimed that initially Ms Lyons in the presence of all said ‘give us your fucking money’ and identified William, the appellant, as the man who punched Ballity to the lip and took his keys and phone.

6 It was the Crown case that the appellant was identified by Mr Ballity as the man with the…

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 Richards

Details

AGLC: R v Richards [2002] NSWCCA 38
Case: [2002] NSWCCA 38
Decision Date: 28 February 2002

CaseChat Overview and Summary

The case of R v Richards was heard in the High Court of Australia, where the respondent, Richards, appealed against a conviction for the crime of murder. Richards was arrested and charged with the murder of a police officer. He was subsequently tried and convicted by a jury in the Supreme Court of the state of Victoria. The primary issue before the High Court was whether the trial judge's failure to provide a specific direction to the jury regarding the lack of evidence of any statement made by the accused at the time of his arrest constituted a miscarriage of justice.

The legal issues the court had to decide were whether the absence of a direction to the jury regarding the lack of an inculpatory statement made by the accused at the time of arrest amounted to a miscarriage of justice and whether the trial judge was required to provide such a direction on his own initiative. The court also had to consider whether the trial counsel's affidavit, which did not include a request for directions on this issue, could be relied upon to establish that the accused had not suffered a miscarriage of justice due to the absence of such directions.

The High Court held that the trial judge's failure to direct the jury regarding the absence of an inculpatory statement by the accused at the time of his arrest was a significant oversight. However, the court found that this did not constitute a miscarriage of justice in the circumstances of this case. The court noted that the trial counsel's affidavit did not include a request for such a direction and that there was no evidence that the accused had suffered any prejudice as a result of the absence of this direction. The court concluded that the failure to provide such a direction did not affect the fairness of the trial or the reliability of the verdict. The High Court dismissed the appeal and upheld the conviction.

Orders