Legal Research
Cases
R v Serratore

R v Serratore

Case [1999] NSWCCA 377 26 November 1999

Appeal

Circumstantial Evidence

Miscarriage of Justice

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision:
48 NSWLR 101

New South Wales

Court of Criminal Appeal

CITATION: R v Serratore [1999] NSWCCA 377 revised - 01/12/99

FILE NUMBER(S): CCA 60675/98

HEARING DATE(S): 21 May, 24-25 June 1999

JUDGMENT DATE:
26 November 1999

PARTIES :

John Serratore (Appellant)
Regina (Respondent)

JUDGMENT OF: Dunford J at 1; Greg James J at 144; Smart AJ at 227

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70018/96

LOWER COURT JUDICIAL OFFICER: Newman J

COUNSEL: IM Barker QC / R Toner SC (Appellant)
CK Maxwell QC (Crown/Respondent)

SOLICITORS: Macedone Christie Willis (Appellant)
CK Smith (Crown/Respondent)

CATCHWORDS: CRIMINAL LAW - murder - appeal against conviction - circumstantial evidence case - whether certain specified intermediate facts essential - trial judge's directions erroneous but favourable to accused - open to jury to convict on evidence, but not in accordance with trial judge's directions - irregularity such as to constitute miscarriage of justice - appeal allowed - new trial or judgment of acquittal; CRIMINAL LAW - murder - indictment - single count - crown case put on alternative basis; EVIDENCE - murder trial - hearsay - evidence of relationship between accused and deceased.

ACTS CITED: Crimes Act 1900, ss 2, 346, 378, 567;
Evidence Act, ss 55, 56, 59, 65, 66, 69, 72, 108, 135, 136, 137, 165;
Criminal Appeal Act 1912, ss 6 & 8.

CASES CITED:
Shepherd v The Queen (1990) 170 CLR 573;
Wilson v The Queen (1970) 123 CLR 334;
R v Frawley (1993) 69 A Crim R 208;
The Queen v Hissey (1973) 6 SASR 280,
R v Ballantine (CCA - 27 June 1978);
R v Hurst (CCA - 2 November 1983);
R v Ball [1911] AC 47 at 68;
R v Dean (unreported - Dunford J, 12 March 1999);
R v Plevac (CCA - 5 October 1995);
R v Lock (1997) 91 A Crim R 356;
R v Mankotia (unreported - Sperling J, 27 July 1998);
R v Lockeyer (1996) 89 A Crim R 457;
R v Singh-Bal (1997) 92 A Crim R 397;
May v O'Sullivan (1995) 92 CLR 654;
R v Towers (1984) 14 A Crim R 12;
Doney v The Queen (1990) 171 CLR 207;
R v R (1989) 18 NSWLR 74;
R v JMR (1991) 39 A Crim R 39;
Fleming v The Queen [1998] HCA 68, (1998) 158 ALR 379;
R v Giam [1999] NSWCCA 53;
Plomp v The Queen (1963) 110 CLR 234;
R v Anderson (1991) 53 A Crim R 421;
R v Clough (1992) 28 NSWLR 396;
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 423;
Bromley v The Queen (1986) 161 CLR 315;
Parker v The Queen [1997] HCA 13, (1997) 186 CLR 494;
R v Sparrow (1980) 51 CCC (2d) 443;
R v Cloutier (1980) 48 CCC (2d) 1;
R v Rahman (1981) 59 CCC (2d) 323;
R v White (1989) 41 A Crim R 237;
Osland v 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 Serratore

Details

AGLC: R v Serratore [1999] NSWCCA 377
Case: [1999] NSWCCA 377
Decision Date: 26 November 1999

CaseChat Overview and Summary

In the case of R v Serratore, the respondent, who had been convicted of murder, appealed against his conviction. The dispute centred on the sufficiency of circumstantial evidence presented against the respondent and whether certain specified intermediate facts were essential to prove the crime. The matter was heard in the High Court of Australia, where the court was required to determine the legal issues raised by the appeal.

The central legal issue was whether the trial judge's directions to the jury regarding the circumstantial evidence were erroneous and whether this error was favourable to the respondent, rendering the conviction unsafe. Additionally, the court had to consider whether the trial judge's directions, if incorrect, were such that they could not be disregarded by the jury. Furthermore, the court examined whether the respondent's conviction could be upheld on the basis that the jury could have convicted him without following the trial judge's directions. The court also considered the appropriateness of allowing the appeal on the ground of a miscarriage of justice due to the irregularity in the trial judge's directions.

The High Court determined that the trial judge's directions to the jury were indeed erroneous and favourable to the respondent. While the evidence was sufficient for the jury to convict the respondent, the trial judge's directions were such that they could not be disregarded. Therefore, the conviction was unsafe and the appeal was allowed on the ground of a miscarriage of justice due to the irregularity in the trial judge's directions. The court found that the irregularity in the trial judge's directions constituted a miscarriage of justice, and the appropriate remedy was either a new trial or a judgment of acquittal.

The court ordered that the appeal be allowed and that a new trial be held or a judgment of acquittal be entered, depending on the Crown's decision. The court also noted that the Crown had the option to proceed with the alternative basis of the indictment presented during the trial.

Orders