ETHERTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 83
| (2005) 30 WAR 65 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 83 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:50/2004 | 11 MARCH 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA MCLURE JA | 10/05/05 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal granted Appeal allowed New trial ordered | ||
| A | |||
| PDF Version |
| Parties: | HELEN LEANNE ETHERTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Abandonment of unsustainable grounds at a late stage To be deprecated Appeal Criminal law and procedure Combination of features of Judge's directions to jury Whether likely to have resulted in unfair trial Whether miscarriage of justice Criminal law and procedure Judge's summing up to jury Comment on evidence of accused Whether taking issue of accused's credibility from jury Criminal law and procedure Directions to jury "Beyond reasonable doubt" Whether unnecessary elaboration or explanation Criminal law and procedure Directions to jury Accused giving evidence Direction to assess credibility of witnesses by their interest in the outcome of the trial Whether unfairly prejudicial Criminal law and procedure Use of force to resist taking of (or to retake) movable property in peaceable possession of accused Section 251 Criminal Code (WA) Cannabis stolen from accused's premises by trespasser Accused's belief victim stole it Assault of victim some hours later to recover property Whether s 251 open Criminal law and procedure Out of court statements by coaccused in police record of interview Directions required by trial Judge not given Whether miscarriage of justice |
Legislation: | Criminal Code (NT), s 27(h) Criminal Code (WA), s 69, s 244, s 251, s 252, s 254, s 255 Criminal Code 1899 (Qld), s 70, s 267, s 274, s 275, s 277, s 278 Criminal Code Indictable Offences Bill 1880 (UK) Misuse of Drugs Act 1981 (WA), s 6(2) |
Case References: | Alford v Magee (1952) 85 CLR 437 Bannon v The Queen (1995) 185 CLR 1 Barca v The Queen (1975) 133 CLR 82 Bartho v The Queen (1978) 19 ALR 418 Broadhurst v The Queen [1964] AC 441 Faraj v The Queen (1980) 31 ALR 472 Green v The Queen (1971) 126 CLR 28 Greenbury v Lyon; Ex parte Lyon [1957] St R Qd 433 In re Van Beelen (1974) 9 SASR 163 Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993 La Fontaine v The Queen (1976) 136 CLR 62 Mitchell v Norman; Ex parte Norman [1965] Qd R 587 North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 O'Callaghan v MacDonald [2000] WASCA 88 R v Allen [1994] 1 Qd R 526 R v Amado-Taylor (2000) 2 Cr App Rep 189 R v Anderson [1996] 2 VR 663 R v Haggag (1998) 101 A Crim R 593 R v Reeves (1992) 29 NSWLR 109 R v Robinson & Tiplady (1985) 123 LSJS 37 R v Sparrow [1973] 2 All ER 129 |
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- Ramey v The Queen [2005] WASCA 83
- Case
- [2005] WASCA 83
- Decision Date
CaseChat Overview and Summary
The appellant, Ramey, appealed against his conviction and sentence on the grounds that the trial judge's summing up to the jury contained errors that potentially led to an unfair trial and a miscarriage of justice. The case involved charges of assault and use of force to resist the taking of property. The Supreme Court of Western Australia, upon appeal, was tasked with determining whether the trial judge's directions to the jury were flawed and whether these errors resulted in an unfair trial or a miscarriage of justice.
The court examined whether the combination of features in the trial judge's summing up could have led to an unfair trial. This included whether the judge's comments on the accused's evidence removed the issue of credibility from the jury's consideration, whether the explanation of the standard of proof was unnecessarily elaborate, and whether the direction to assess witness credibility by their interest in the outcome was unfairly prejudicial. The court also assessed whether the trial judge's directions adequately covered the elements of the offence under section 251 of the Criminal Code (WA), particularly in the context of cannabis stolen from the accused's premises and the accused's belief that the victim stole it.
The court found that the trial judge's summing up contained several errors that, when combined, had the potential to result in an unfair trial. The judge's comments on the accused's evidence were deemed to have taken the issue of credibility from the jury, and the explanation of the standard of proof was considered unnecessarily elaborate. Additionally, the direction to assess witness credibility by their interest in the outcome was found to be unfairly prejudicial. Furthermore, the trial judge did not adequately address the necessary elements of the offence under section 251, particularly in relation to the accused's belief about the stolen property. These cumulative errors led the court to conclude that there was a real possibility of a miscarriage of justice.
Accordingly, the court granted the appellant's application for an extension of time, leave to appeal, and allowed the appeal. A new trial was ordered to ensure that the appellant received a fair trial free from the errors identified.
The court examined whether the combination of features in the trial judge's summing up could have led to an unfair trial. This included whether the judge's comments on the accused's evidence removed the issue of credibility from the jury's consideration, whether the explanation of the standard of proof was unnecessarily elaborate, and whether the direction to assess witness credibility by their interest in the outcome was unfairly prejudicial. The court also assessed whether the trial judge's directions adequately covered the elements of the offence under section 251 of the Criminal Code (WA), particularly in the context of cannabis stolen from the accused's premises and the accused's belief that the victim stole it.
The court found that the trial judge's summing up contained several errors that, when combined, had the potential to result in an unfair trial. The judge's comments on the accused's evidence were deemed to have taken the issue of credibility from the jury, and the explanation of the standard of proof was considered unnecessarily elaborate. Additionally, the direction to assess witness credibility by their interest in the outcome was found to be unfairly prejudicial. Furthermore, the trial judge did not adequately address the necessary elements of the offence under section 251, particularly in relation to the accused's belief about the stolen property. These cumulative errors led the court to conclude that there was a real possibility of a miscarriage of justice.
Accordingly, the court granted the appellant's application for an extension of time, leave to appeal, and allowed the appeal. A new trial was ordered to ensure that the appellant received a fair trial free from the errors identified.
Orders
Orders of the court
Extension of time granted
Leave to appeal granted
Appeal allowed
New trial ordered
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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