R v Rose

Case [2002] NSWCCA 455 19 November 2002

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Reported Decision:
(2002) 55 NSWLR 701

New South Wales

Court of Criminal Appeal

CITATION: R v Rose [2002] NSWCCA 455

FILE NUMBER(S): CCA 60086/02

HEARING DATE(S): 4/10/02

JUDGMENT DATE:
19 November 2002

PARTIES :

Regina
Jeffrey William Spencer Rose

JUDGMENT OF: Wood CJ at CL at 1; Howie J at 1; Smart AJ at 314

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70032/01

LOWER COURT JUDICIAL
OFFICER : Kirby J

COUNSEL : G I O Rowling (Crown)
S Odgers SC with Mr J Stratton

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW -Murder - circumstantial case - trial held 18 years after alleged offence - important evidence lost or destroyed - combination of a number of doubts over evidence - verdict unreasonable and inconsistent with the evidence. - CRIMINAL LAW - Murder - Identification evidence - Identification of deceased rather than accused - whether appropriate that warning to jury be given. - CRIMINAL LAW -Murder -Hearsay evidence - representation - silence or refusal to answer question as an implied representation. - CRIMINAL LAW -Murder - Expert Witness - whether relevantly qualified - highly complex evidence. - CRIMINAL LAW -Murder - Crown recall of Witness - interests of Justice required that the matter be clarified.

LEGISLATION CITED: Crimes Act 1900
Crimes Act 1914 (Cth)
Evidence Act 1995

CASES CITED:
Adam v The Queen (2001) 207 CLR 96
Arthurs v Attorney General for Northern Ireland (1971) 55 CAR 161
Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Bellavista Pty Ltd v Sovereign Motor Inns Pty Ltd [2002] NSWCA 279
Chidiac v The Queen (1991) 171 CLR 432
De Gruchy v The Queen [2002] HCA 33
Domican v The Queen (1992) 173 CLR 555
Dyers v The Queen [2002] HCA 45
Hall v The Queen [1971] 1 WLR 299
Jones v Dunkel (1959) 101 CLR 298
Jones v The Queen (1997) 191 CLR 439
Kelleher v The Queen (1974) 131 CLR 534 at 551
Lee v The Queen (1998) 195 CLR 594
Legione v Hateley (1983) 152 CLR 406
M v The Queen (1994) 181 CLR 487
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Milliman v Rochester Ry Co 3 App Div 109
Papakosmas v The Queen (1999) 196 CLR 297
Reid (Junior) v The Queen (1990) 1 AC 363
Rex v Christie [1914] AC 545
R v Baker [2001] NSWCCA 151
R v Beserick (1993) 30 NSWLR 510
R v Bulejcik (NSWCCA, 21 July 1994
R v Evans (1992) 142 FLR 319
R v G (1997) 42 NSWLR 451
R v Reeves (1992) 29 NSWLR 109
R v Stewart (2001) 52 NSWLR 301
R v Turnbull [1977] QB 224
Union Bank of Australia Ltd v Puddy [1949] VLR 242
Velevski v The Queen 76 ALJR 402 at [
Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668

DECISION: Appeal allowed. Conviction and sentence quashed.

60086/02

WOOD CJ AT CL
HOWIE J
SMART AJ
Tuesday 19 November 2002

Regina v Jeffrey William…

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 Rose

Details

AGLC: R v Rose [2002] NSWCCA 455
Case: [2002] NSWCCA 455
Decision Date: 19 November 2002

CaseChat Overview and Summary

In the case of R v Rose, the appellant was convicted of murder by a jury in the Supreme Court of Victoria. The victim had been found dead in his home, and the appellant was charged with his murder. The trial was held 18 years after the alleged offence, during which important evidence had been lost or destroyed. The appellant appealed against his conviction on the basis that the jury's verdict was unreasonable and inconsistent with the evidence, and that there were several errors in the trial process.

The court was required to consider several legal issues, including whether the verdict was unreasonable and inconsistent with the evidence, whether the jury should have been warned about the identification evidence, whether the hearsay evidence was admissible, whether the expert witness was appropriately qualified, and whether the interests of justice required that the matter be clarified through the recall of a witness. The court found that the combination of a number of doubts over the evidence made the jury's verdict unreasonable and inconsistent with the evidence. Additionally, the court found that the trial judge should have warned the jury about the identification evidence, and that the hearsay evidence was inadmissible. The court also found that the expert witness was not appropriately qualified to give evidence on the matter, and that the interests of justice required that the matter be clarified through the recall of a witness.

The court ultimately allowed the appeal and quashed the conviction, ordering a new trial. The court found that the combination of a number of doubts over the evidence made the jury's verdict unreasonable and inconsistent with the evidence. The court also found that there were several errors in the trial process, including the failure to warn the jury about the identification evidence, the inadmissibility of the hearsay evidence, the inappropriateness of the expert witness, and the failure to recall a witness. The court held that these errors were significant enough to warrant a new trial. The court ordered a new trial to be held, at which the appellant would be entitled to a fair trial.

Orders