R v Vincent - [2002] NSWCCA 369

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. VINCENT [2002] NSWCCA 369

FILE NUMBER(S):
60104/02

HEARING DATE(S): 23 August 2002

JUDGMENT DATE: 06/09/2002

PARTIES:
Regina - respondent
Benjamin Michael Vincent - appellant

JUDGMENT OF: Hodgson JA Simpson J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0881

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
Mr. A. Haesler with Mr. D. Weir for appellant
Mr. G. Rowling for Crown

SOLICITORS:
D.J. Humphreys for appellant
S.E. O'Connor for Crown

CATCHWORDS:
CRIMINAL LAW
EVIDENCE - Hearsay - Whether admissible - Whether unreliability warning required - Lies - Whether relied on only as to credibility - Whether directions adequate.

LEGISLATION CITED:
Evidence Act ss.59, 62, 65, 165

DECISION:
Appeal againt conviction dismissed.
Leave to appeal against sentence refused.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60104/02
DC 01/11/0881
HODGSON JA
SIMPSON J
SMART AJ
Friday 6 September 2002

REGINA v. Benjamin Michael VINCENT

Judgment

HODGSON JA: On 4 January 2002, the appellant was arraigned in Sydney District Court before Dodd DCJ on a charge that he:
On 14 May 2001 at Bellevue Hill in the State of New South Wales, did rob Magdi Raphael of certain property, namely certain moneys, the property of Magdi Raphael, and at the time of the robbery used corporal violence on Magdi Raphael.
The appellant pleaded not guilty, and there ensued a trial lasting three days before Dodd DCJ and a jury, resulting in a verdict of guilty on 16 January 2002.
On 1 March 2002, the appellant was sentenced to a term of imprisonment of six years to date from 14 November 2002 and to expire on 13 November 2008, with a non-parole period of three years to date from 14 November 2002 and to expire on 13 November 2005. Commencement of this sentence followed the end of a sentence for a term of imprisonment of eighteen months imposed at the same time for an offence of attempting to dispose of stolen property, to which the appellant had pleaded guilty.
The appellant appeals to this Court from his conviction, and seeks leave to appeal from the sentences.
CROWN CASE
Evidence was given by Magdi Raphael to the effect that at about 10.40am on 14 May 2001, he was robbed in his chemist shop of over $500.00 by two men. This was not disputed at the trial: the only question was whether or not the appellant was one of those men.
Mr. Raphael gave evidence that, after the two men left his shop, he stood up and went to the front of the shop where he found a young lady pushing a stroller. She asked him “Are you hurt?”, and he said he was alright. She then said “I’ve got the car number, rego it’s RRB 373”. He wrote down the number, and she said “It’s a red car”. The young lady went away, not having given her name or address or phone number, and she has not since been identified or located.…

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 Vincent

Details

AGLC: R v Vincent [2002] NSWCCA 369
Case: [2002] NSWCCA 369
Decision Date: 6 September 2002

CaseChat Overview and Summary

In the case of R v Vincent, the respondent was charged with multiple counts of sexual assault. The respondent appealed against his conviction, arguing that the trial judge erred in admitting hearsay evidence and in failing to provide an unreliability warning. The appeal was heard by the Court of Appeal in New South Wales. The primary issue before the court was whether the trial judge erred in admitting hearsay evidence and in not providing an unreliability warning. The court had to determine whether the hearsay evidence was only relied upon to assess the credibility of the witness and whether the trial judge's directions to the jury were adequate.

The court found that the hearsay evidence was not only used to assess the credibility of the witness but was also used to establish facts in issue. The court held that the hearsay evidence was inadmissible because it was not an exception to the hearsay rule. The court also found that the trial judge should have provided an unreliability warning to the jury because the hearsay evidence was unreliable and the risk of unfair prejudice to the respondent was significant. The court held that the trial judge's directions to the jury were inadequate because they did not adequately address the unreliability of the hearsay evidence. The court found that the admission of the hearsay evidence and the failure to provide an unreliability warning was a significant error that affected the fairness of the trial.

The appeal was allowed, and the conviction was quashed. The court ordered a retrial, and the respondent was released on bail pending the retrial. The court held that the error in admitting hearsay evidence and failing to provide an unreliability warning was not a minor error that could be cured by a direction to the jury. The court found that the error had a significant impact on the fairness of the trial and that a retrial was necessary to ensure a fair trial for the respondent. The court also held that the respondent was entitled to be released on bail pending the retrial.

Orders