R v Vincent - [2002] NSWCCA 110

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Vincent [2002] NSWCCA 110

FILE NUMBER(S):
60728/01

HEARING DATE(S): 2 April 2002

JUDGMENT DATE: 02/04/2002

PARTIES:
R v Thomas Anthony Vincent

JUDGMENT OF: Heydon JA Studdert J Levine J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0255

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:
Mr P G Ingram (Crown)
Mr P Byrne SC (Respondent)

SOLICITORS:
S E O'Connor (Crown)
The Law Practice (Respondent)

CATCHWORDS:
Court of Criminal Appeal - jurisdiction - Criminal Appeal Act 1912 (NSW) s 5F - provision conferring jurisdiction to hear appeals from interlocutory orders - whether orders below interlocutory or final - meaning of words "I discharge the accused" - whether distinction between discharge and acquittal - autrefois acquit

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60728/01
DC 98/11/0255
HEYDON JA
STUDDERT J
LEVINE J
2 April 2002

REGINA v Thomas Anthony VINCENT

Judgment

HEYDON JA: This is a Crown appeal purportedly from an order of Hosking DCJ, SC, made on 23 October 2001 discharging the accused.
This matter has been before the courts on many occasions but it is not necessary to set out any part of the chronology except the following.
On 16 February 1997 a dwelling at 1A Tara St Woollahra was damaged following an explosion. The Crown alleged that the accused and one Max Gibson deliberately caused the explosion. The accused was arrested on that day. Initially bail was refused but later granted on conditions.
On 4 June 2001, after several attempts to start a trial had failed, a trial commenced before Judge Stewart in the District Court. There were two counts. The first was:
“On 16 February 1997 at Woollahra in the State of New South Wales the accused Thomas Anthony Vincent did maliciously damage a dwelling the property of Cascade Holdings Pty Ltd and Drulara Pty Ltd by means of fire”.
The second, which was an alternative to the first, was:
“On 16 February 1997 at Woollahra in the State of New South Wales the accused Thomas Anthony Vincent did maliciously damage a dwelling the property of Cascade Holdings Pty Ltd and Drulara Pty Ltd”.
On 21 June 2001 Stewart ADCJ, QC, directed the jury to acquit on the second count, which they did, on the ground that there was no evidence that the accused or Gibson “acting in concert intended to cause damage to these premises other than by fire”.
On 25 June 2001 the jury announced that they were in disagreement on the first count.
On 27 July 2001 the trial was fixed to commence again on 22 October 2001. On that day it seems that a document was prepared indicating that it was “the present intention of the Crown to present an indictment in the following form”; the old count one was set out, with the new count two having been crossed out.
On 17 October 2001 the accused filed a notice of motion supported…

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 110
Case: [2002] NSWCCA 110
Decision Date: 2 April 2002

CaseChat Overview and Summary

In the matter of R v Vincent, the Court of Criminal Appeal was asked to determine whether it had jurisdiction to hear an appeal from certain orders made by a lower court. The appellant, Vincent, was seeking to appeal a decision of the Local Court which had discharged him without conviction following a trial on indictment. The primary legal issue before the court was whether the orders made by the Local Court were interlocutory or final, and thus whether the Court of Criminal Appeal had jurisdiction to hear the appeal under the provisions of the Criminal Appeal Act 1912 (NSW). The court also needed to consider whether there was a meaningful distinction between discharge and acquittal, and whether the principle of autrefois acquit applied in this context.

The Court of Criminal Appeal found that the orders made by the Local Court were indeed interlocutory, rather than final, as they did not definitively conclude the matter. The court held that the words "I discharge the accused" indicated that the decision did not amount to a final judgment of acquittal. This conclusion was based on the court's interpretation of the legislative intent behind the Criminal Appeal Act 1912 (NSW) and its understanding of the procedural context in which the orders were made. Furthermore, the court held that there was a meaningful distinction between discharge and acquittal, and that the principle of autrefois acquit did not apply in this instance as the orders were interlocutory. Consequently, the Court of Criminal Appeal determined that it did not have jurisdiction to hear the appeal from the Local Court's orders.

As a result of the court's decision, the appeal was dismissed for lack of jurisdiction. The Court of Criminal Appeal found that it was not empowered to hear the appeal from the interlocutory orders made by the Local Court. The court's decision underscores the importance of correctly identifying the nature of orders made by lower courts, as well as the need for a clear understanding of the jurisdictional provisions contained within the Criminal Appeal Act 1912 (NSW).

Orders