R v Whelan - [2003] NSWCCA 59

Reported Decision:
(2002-2003) 56 NSWLR 454

New South Wales

Court of Criminal Appeal

CITATION: R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59

HEARING DATE(S): 4 March 2003

JUDGMENT DATE:
13 March 2003

JUDGMENT OF: Hodgson JA at 1; Dowd J at 100; Barr J at 101

DECISION: 1. With respect to each appellant, verdict of guilty on count 2 substituted for the verdict of guilty on counts 1 and 3, and for avoidance of uncertainty the verdict of guilty on counts 1 and 3 quashed and a verdict of acquittal entered on those counts. 2. Appellant Whalen sentenced to imprisonment for two years three months commencing 1 March 2002 and expiring 31 May 2004, with a non-parole period of eighteen months expiring 31 August 2003, and the Court directs his release on parole on 31 August 2003. 3. Appellant Willer sentenced to imprisonment for one year nine months commencing 1 March 2002 and expiring 30 November 2003, with a non-parole period of twelve months expiring 28 February 2003, and the Court directs his release on parole forthwith.

CATCHWORDS: CRIMINAL LAW - APPEAL - Identity of inanimate object - Whether s.165 direction required - Need to have defence case fairly before jury - Whether alternative count appropriate - Circumstances in which appeal court can substitute for the verdict found by the jury a verdict of guilty for another offence.

LEGISLATION CITED: Criminal Appeal Act 1912 ss.6, 7
Criminal Procedure Act 1986, s.99
Evidence Act 1995 ss.54, 165

CASES CITED: Checconi (1988) 34 ACrimR 160
Crupi (1995) 86 ACrimR 299
Hamzy (1994) 74 ACrimR 341
Locchi (1991) NSWLR 309
R v. Birks (1990) 19 NSWLR 677
R v. Clout (1995) 41 NSWLR 312
R v. Sultana (1992) 74 ACrimR 27
Shepherd v. The Queen (1990) 170 CLR 573
Theos (1996) 89 ACrimR 486

PARTIES :
Regina - respondent
Andrew John Whalen - appellant
Brett J. Willer - appellant

FILE NUMBER(S): CCA 60270/02; 60271/02

COUNSEL: Mr. M.C. Ramage QC for Mr. Whalen
Mr. P. Hamill for Mr. Willer
Mr. D.M. Howard for Crown/respondent

SOLICITORS: Pickering Priestley for appellants
S.E. O'Connor for Crown/respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 98/31/0436

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

CCA 60270/02
CCA 60271/02
DC 98/31/0436

HODGSON JA
DOWD J
BARR J
Thursday 13 March 2003

REGINA v. Andrew John WHALEN

REGINA v. Brett J. WILLER

Judgment

1 HODGSON JA: On 30 January 2002, the appellants Andrew John Whalen and Brett J. Willer were arraigned before Christie DCJ on three charges:

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 Whelan

Details

AGLC: R v Whelan [2003] NSWCCA 59
Case: [2003] NSWCCA 59
Decision Date: 13 March 2003

CaseChat Overview and Summary

The case of R v Whelan came before the court on appeal where the defendant contested the conviction for a criminal offence. Whelan was convicted of an act involving an inanimate object, and the appeal centred around whether the trial judge correctly applied the law in relation to the direction given to the jury concerning the identity of the object in question. The court was required to determine whether the trial judge should have directed the jury under section 165, which pertains to the need for the defence case to be fairly presented to the jury. Additionally, the court had to decide whether an alternative count was appropriate under the circumstances and if the appeal court could replace the jury's verdict with a guilty verdict for another offence.

The legal issues before the court involved interpreting the requirements of section 165 and understanding the circumstances under which an alternative count could be applied. The court examined whether the trial judge was correct in not directing the jury on the need to consider the identity of the inanimate object in question. The court also assessed whether the conviction could stand if there was an alternative count that was applicable and if the appeal court had the authority to substitute the jury's verdict for a different offence.

The court found that the trial judge did not err in not directing the jury under section 165 as the defence case was sufficiently before the jury. The court also concluded that the conviction could stand on an alternative count, as there was evidence supporting a lesser offence. Furthermore, the court held that in exceptional circumstances, it could substitute the jury's verdict with a guilty verdict for another offence if the evidence clearly supported such a finding. The appeal was allowed, and the conviction was substituted for a lesser offence.

The final orders of the court involved substituting the conviction for the lesser offence, thus altering the outcome of the trial. The court's decision provided clarity on the application of section 165 and the conditions under which an alternative count could be applied, setting a precedent for future cases involving similar legal issues.

Orders