CATCHWORDS:
EVIDENCE
criminal trial
confessions and admissions
discretion to exclude
reliability
whether there was a miscarriage of justice
Evidence Act 1995, s90, s138
Criminal Appeal Act 1912, s6
EVIDENCE
criminal trial
confessions and admissions
discretion to exclude
restrictions on appellate court review
CRIMINAL LAW
appeal against conviction
whether verdict was "unsafe and unsatisfactory"
"unreasonable"
Criminal Appeal Act 1912, s6(1)

LEGISLATION CITED:
Criminal Appeal Act 1912
Evidence Act 1995
Listening Devices Act 1984

DECISION:
Appeal dismissed.

JUDGMENT:

- 34 -

IN THE COURT OF
CRIMINAL APPEAL
60455/98

SPIGELMAN CJ
IRELAND J
SIMPSON J
Thursday 23 March 2000

REGINA v Michael Shand WALKER
JUDGMENT

SPIGELMAN CJ: The Appellant was convicted by a jury of murder. He was sentenced by Sully J in the Supreme Court of New South Wales to serve a minimum term of fourteen years penal servitude, and an additional term of five years. The appeal is against his conviction.
The Appellant shot and killed a taxi driver, Wendy Bell, on 4 May 1995. At his trial, the issue was whether or not the fatal shot was the result of a deliberate act of the Appellant, with intent to kill or to inflict grievous bodily harm.
In murder, the elements of a deliberate act and of an intention may be separate, but in the way the case was run below, and in this Court, those two elements overlapped considerably in terms of a defence of an accidental discharge.
In the trial below manslaughter by an unlawful dangerous act was also left to the jury. However, the jury convicted of murder.
There are two grounds of appeal. First, the Appellant submits that certain evidence of a police informer concerning alleged conversations with the Appellant should not have been admitted into evidence. Secondly, the Appellant asserts that having regard to certain matters, the verdict of guilty of murder was "unsafe and unsatisfactory".
On 4 May 1995, the Appellant hailed a taxi at Manly. He sat in the rear of the taxi which took him to various points in the vicinity. At one point during the course of the drive, the deceased taxi driver activated an alarm which indicated that the driver felt that she was under threat. The taxi was then in Dee Why in the vicinity of a police station. Near the police station, the revolver that the Appellant was holding wrapped in a towel discharged and the taxi driver was shot in the back. One shot was fired from the Appellant's revolver. The shot passed through the back of the taxi driver's seat and into 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 Walker

Details

AGLC: R v Walker [2000] NSWCCA 130
Case: [2000] NSWCCA 130
Decision Date: 23 March 2000

CaseChat Overview and Summary

In the case of R v Walker, the defendant was convicted of a serious crime and appealed against his conviction. The dispute centred on the admissibility of certain evidence and whether the trial judge had properly exercised his discretion under the Evidence Act 1995. The appeal was heard by the appellate court, which had to determine if the verdict was "unsafe and unsatisfactory" and whether there had been a miscarriage of justice.

The legal issues before the court were whether the trial judge had correctly exercised his discretion to exclude evidence under section 90 of the Evidence Act 1995, and if the evidence was sufficiently reliable to be admitted. The court also had to consider whether the admission of the evidence had led to a miscarriage of justice, and if the verdict was unreasonable under section 6(1) of the Criminal Appeal Act 1912.

The appellate court examined the trial judge's reasoning and found that the judge had exercised his discretion appropriately, taking into account the reliability of the evidence and the circumstances in which it was obtained. The court determined that the evidence was reliable and that its admission did not result in a miscarriage of justice. The appellate court concluded that the verdict was not "unsafe and unsatisfactory" or unreasonable, and therefore dismissed the appeal.

No further orders were made by the appellate court. The defendant's conviction was upheld, and the case serves as a reminder of the importance of the trial judge's discretion in determining the admissibility of evidence in criminal trials, and the limited scope of appellate court review in such matters.

Orders