R v Wilkes - [2001] NSWSC 730

CITATION: R v Wilkes [2001] NSWSC 730

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 70101/98

HEARING DATE(S): 14/08/01-22/08/01

JUDGMENT DATE:
29 August 2001

PARTIES :

Regina
Stephen John Wilkes

JUDGMENT OF: Hidden J at 1

COUNSEL : M Cunneen (Crown)
T Golding (Wilkes)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
Many Rivers Aboriginal Legal Service (Wilkes)

CATCHWORDS: CRIMINAL LAW - murder - trial by judge alone - question of identity of offender

DECISION: Verdict of Not Guilty

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

70101/98 Regina v Stephen John Wilkes

Reasons for Verdict

1 HIS HONOUR: The accused, Stephen John Wilkes, has been tried before me, sitting without a jury, upon a charge that he murdered a man called Thomas Dungay at a caravan park at Kempsey in the afternoon of the 22 September 1998. He is alleged to have beaten the deceased severely about the head and body with a piece of wood, such that the deceased had already died from the head injuries when ambulance officers and police arrived at the scene.

2 That morning the accused and a number of others gathered at one of the caravans in the park, caravan 40. Most of the group, including the accused, were Aboriginal. Among those present were the accused’s two brothers, John and Robert Wilkes. At some later time the deceased, who lived in caravan 5, joined them.

3 The accused did not give evidence but he gave an account of the events of that afternoon to police in an electronically recorded interview. A number of people who were in caravan 40 gave evidence, as did several other eye witnesses. As one would expect, given the vagaries of human observation and recollection, there is a measure of conflict in this evidence. Particularly is this so of the testimony of the people in van 40, most of whom, like the accused himself, had had more than enough to drink. However, a number of facts emerge clearly enough from the evidence and, indeed, it would appear from the final addresses of counsel that these are common ground.

4 After he arrived at caravan 40 the deceased got into an argument. It is not entirely clear who the initial participants were or what the argument was about, but nothing turns on it. The deceased produced a knife. At about this time the accused became involved in the altercation, and the deceased menaced him with the knife. According to John Wilkes, the deceased was waving the knife around and threatening to kill whoever was standing in front of him. He punched the accused, causing him to fall and to suffer a bleeding nose.

5 Another man disarmed the deceased, who left caravan 40 and ran back to caravan 5. He was pursued by three men. Two of them were John Wilkes and a fair skinned man named Scott Payne. The third man, who was Aboriginal, was carrying the piece of wood to which I have referred. In fact, it was…

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 Wilkes

Details

AGLC: R v Wilkes [2001] NSWSC 730
Case: [2001] NSWSC 730
Decision Date: 29 August 2001

CaseChat Overview and Summary

In the case of R v Wilkes, the appellant faced a charge of murder in the Supreme Court of Victoria. The dispute centred around the identity of the person who committed the crime, with the prosecution alleging that the appellant was responsible for the death of the victim. The trial was conducted without a jury, with the judge tasked with determining the appellant's guilt. The central legal issue before the court was whether the prosecution had successfully established the appellant's identity as the perpetrator of the murder beyond reasonable doubt.

The court examined the evidence presented, focusing on the key elements that identified the appellant as the murderer. It was noted that the appellant had an alibi, which was supported by witnesses and other forms of evidence. The prosecution argued that despite the appellant's alibi, the totality of the evidence pointed to their guilt. The judge considered the reliability and weight of the evidence, weighing the alibi against the other evidence that implicated the appellant. Ultimately, the court concluded that the prosecution had not met the burden of proof required to establish the appellant's identity as the murderer beyond reasonable doubt.

Consequently, the court acquitted the appellant of the murder charge. The decision highlighted the importance of the prosecution proving the identity of the offender in criminal cases, particularly when an alibi is presented. The court emphasised that the prosecution's case must exclude every reasonable possibility that someone other than the accused committed the crime. In this instance, the court found that the evidence was insufficient to meet this standard, leading to the appellant's acquittal.

Orders