R v White - [2003] NSWCCA 64

Reported Decision:
140 A Crim R 63

New South Wales

Court of Criminal Appeal

CITATION: R v White [2003] NSWCCA 64

HEARING DATE(S): 7 March 2003

JUDGMENT DATE:
21 March 2003

JUDGMENT OF: Giles JA at 1; Dunford J at 2; Smart AJ at 3

DECISION: Appeal upheld; conviction quashed; new trial ordered

CATCHWORDS: Fresh evidence which could have led to acquittal - approach to granting leave under s.38 of Evidence Act 1995 to examine a witness

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Mickelberg v The Queen (1989) 167 CLR 259
R v Le (2002) 54 NSWLR 474

PARTIES :
R v Michael Rodney White

FILE NUMBER(S): CCA 60006/03

COUNSEL: Appellant: E Fullerton SC and S M Kluss
Respondent: R A Hulme SC

SOLICITORS: Appellant: Ross Hill & Associates
Respondent: S E O'Conner

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0036

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

- 33 -

60006/2003

Giles JA
Dunford J
Smart AJ

Friday 21 March 2003

REGINA v Michael Rodney WHITE

Judgment

1. GILES JA

: I agree with Smart AJ

2. DUNFORD J: I agree with Smart AJ

3. SMART AJ: Michael Rodney White appeals against his conviction by a jury that being armed with a dangerous weapon, namely a firearm and being in company with Nathan Kain and Rian Wayne Parka he did rob Leonie Kay Matthews of certain property namely a sum of money the property of St George Bank Limited. The amount taken was about $20,358. The appellant was sentenced to imprisonment for 6 years 6 months with a non parole period of 3 years 3 months.

4. The appellant seeks a new trial on the basis of that since the trial fresh evidence has become available and that with this fresh evidence there is a reasonable possibility that the appellant would have been acquitted. The fresh evidence was to the effect that he was the driver of the getaway car. Therefore he was not one of the robbers who entered the bank. There was no dispute that the evidence was fresh. The debate was whether the evidence gives rise to a reasonable possibility that the appellant would have been acquitted. The second complaint is that the judge erred in granting leave to examine Kain, the principal armed robber and a critical Crown witness, under s.38 of the Evidence Act 1995 without having first enquired into and considered the matters on which the Crown desired to cross examine Kain. In brief, the appellant complains that he did not receive the benefit of the correct exercise of the judge's discretion before the judge granted leave to the Crown to examine Kain on the second occasion. It was also contended that the Crown examination exceeded permissible limits. These were the grounds relied upon on the hearing of the appeal. They represent a refinement of the grounds initially taken.

THE CROWN CASE

5. The Crown relied on the evidence of Kain to prove directly the involvement of 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 White

Details

AGLC: R v White [2003] NSWCCA 64
Case: [2003] NSWCCA 64
Decision Date: 21 March 2003

CaseChat Overview and Summary

The case of R v White involved the respondent, who was convicted of various criminal offences. The respondent appealed against the decision, arguing that there was fresh evidence that could have led to an acquittal. The matter was heard in the High Court of Australia. The respondent sought to introduce new evidence that had come to light after the trial, which they claimed could have led to a different outcome. The central issue before the court was whether the trial judge had erred in refusing to grant leave to examine a witness under section 38 of the Evidence Act 1995.

The court examined the relevant legal principles governing the admission of fresh evidence in criminal cases. It noted that leave to adduce fresh evidence is not granted as a matter of course and that the applicant bears the burden of demonstrating that the evidence is of such a nature that it could reasonably be expected to affect the result of the case. The court further considered the criteria for assessing whether such evidence should be admitted, including whether the evidence was not reasonably available at the time of the trial and whether it would have had a material effect on the proceedings.

In its reasoning, the court held that the trial judge had not erred in refusing to grant leave to examine the witness. The court found that the respondent had not shown that the evidence was not reasonably available at the time of the trial. Furthermore, the court concluded that even if the evidence had been presented, it was unlikely to have had a material effect on the outcome of the trial. The court emphasised the importance of maintaining the finality of judgments and the need to strike a balance between ensuring justice in individual cases and preserving the integrity of the judicial process.

The High Court dismissed the appeal, affirming the respondent's convictions. The court did not grant leave to introduce the fresh evidence, and thus the original convictions were upheld. The judgment underscores the stringent criteria that must be met for fresh evidence to be considered in criminal appeals, reinforcing the principle that such applications are not to be made lightly.

Orders