R v Walker - [2021] NSWDC 850

District Court

New South Wales

Medium Neutral Citation: R v Walker [2021] NSWDC 850
Hearing dates: 19 – 22, and 26 July 2021
Date of orders: 26 July 2021
Decision date: 26 July 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Not guilty of each count.

Catchwords:
Criminal trial by judge alone – Two charges: specially aggravated armed home invasion and stealing a motor vehicle – Accused alleged to be one of three offenders – One offender still at large – One offender pleaded guilty and gave evidence against accused – His evidence critical to form case – Directions given in accord with R v Murray and Evidence Act 1995 s 165(1)(d) – Evidence of this witness rejected – After careful consideration of all the evidence Court not satisfied beyond reasonable doubt of guilt of accused on either count.

Legislation Cited:
Crimes Act 1900
Evidence Act 1995

Cases Cited:
Moore v R [2016] NSWCCA 185
R v Murray (1987) 11 NSW LR 12
Sio v The Queen [2016] HCA 32

Texts Cited:
Nil.

Category: Principal judgment
Parties: Rex (Crown)
Accused – Neil Patrick Walker
Representation:
Counsel:
Crown – Hughes, A.
Accused – Cranney, P.
Solicitors:
Commonwealth Director of Public Prosecutions (NSW)
Aboriginal Legal Service

File Number(s): 2020/00075638
Publication restriction: Nil.

Judgment

HIS HONOUR: This is a criminal trial by judge alone. An indictment was presented to me on 19 July 2021 which contained two counts. The first count is:

“On 13 October 2016, at Bowraville in the State of New South Wales, [you] did break and enter the dwelling house of Eric Fuller at 89A Balance Tank Road, and then in the said dwelling did commit a serious indictable offence, namely steal motor vehicle, namely a Harley Davidson motorcycle, in the circumstances of special aggravation, namely that the said Neil Patrick Walker was in company with Alistair White, and did intentionally wound Eric Fuller.”

That is an offence contrary to s 112(3) of the Crimes Act 1900. The second count in the indictment is this:

“On 13 October 2016, at Bowraville in the State of New South Wales, [you] did steal a motor vehicle, namely Holden utility with New South Wales registration BX 80 DD.”

That is an offence contrary to s 154F of the Crimes Act 1900. To each of those counts the accused entered a plea of not guilty. It has become my duty therefore to act as both the tribunal of law and of fact to decide the case. I have to direct myself as if I were a jury. The first directions which I give to myself are those concerning the onus of proof and the standard of proof.

Directions

Burden of proof

The burden of proof of the guilt of the Accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element of the offences with which the Accused has been charged. That burden never shifts to the Accused. There is no obligation whatsoever on the Accused…

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 [2021] NSWDC 850
Case: [2021] NSWDC 850
Decision Date: 26 July 2021

CaseChat Overview and Summary

The case of R v Walker involved a criminal trial by a judge alone where the accused was charged with specially aggravated armed home invasion and stealing a motor vehicle. The accused was alleged to be one of three offenders, with one still at large and another who pleaded guilty and testified against the accused. The evidence of the co-offender was critical in forming the case against the accused. Directions were given in accordance with the principles established in R v Murray and section 165(1)(d) of the Evidence Act 1995. After thorough consideration of all the evidence, the court was not satisfied beyond reasonable doubt of the guilt of the accused on either count.

The legal issues before the court were primarily concerned with the admissibility and reliability of the co-offender's evidence, given the circumstances of the case. The court had to determine whether the evidence was sufficiently reliable to convict the accused, taking into account the principles set out in R v Murray and the requirements of the Evidence Act 1995. The court also needed to assess the overall sufficiency of the evidence to establish the accused's guilt beyond reasonable doubt on both charges.

The court carefully examined the evidence, including the testimony of the co-offender, and weighed its reliability and probative value. It found that the evidence of the co-offender was not sufficiently reliable to support a conviction against the accused. The court noted that the evidence was critical to the prosecution's case, but after thorough consideration, it concluded that there was insufficient evidence to satisfy the beyond reasonable doubt standard on either charge. Consequently, the court found the accused not guilty of both the specially aggravated armed home invasion and the stealing of a motor vehicle.

The final orders of the court were that the accused be acquitted of both counts. The court delivered its verdict, stating that the prosecution had not met the burden of proof required to establish the guilt of the accused beyond reasonable doubt. The accused was thus found not guilty on each count, resulting in their release from custody.

Orders

Orders of the court

Not guilty of each count.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Walker [2021] NSWDC 850
Hearing dates:	19 – 22, and 26 July 2021
Date of orders:	26 July 2021
Decision date:	26 July 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Not guilty of each count.
Catchwords:	Criminal trial by judge alone – Two charges: specially aggravated armed home invasion and stealing a motor vehicle – Accused alleged to be one of three offenders – One offender still at large – One offender pleaded guilty and gave evidence against accused – His evidence critical to form case – Directions given in accord with R v Murray and Evidence Act 1995 s 165(1)(d) – Evidence of this witness rejected – After careful consideration of all the evidence Court not satisfied beyond reasonable doubt of guilt of accused on either count.
Legislation Cited:	Crimes Act 1900 Evidence Act 1995
Cases Cited:	Moore v R [2016] NSWCCA 185 R v Murray (1987) 11 NSW LR 12 Sio v The Queen [2016] HCA 32
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Rex (Crown) Accused – Neil Patrick Walker
Representation:	Counsel: Crown – Hughes, A. Accused – Cranney, P. Solicitors: Commonwealth Director of Public Prosecutions (NSW) Aboriginal Legal Service
File Number(s):	2020/00075638
Publication restriction:	Nil.