Rees v Regina

Case [2010] NSWCCA 84

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Rees v Regina [2010] NSWCCA 84

FILE NUMBER(S):
2008/1691

HEARING DATE(S):
22 February 2010

JUDGMENT DATE:
7 May 2010

PARTIES:
Jason Lee Rees (Appellant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Hulme J Latham J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0190

LOWER COURT JUDICIAL OFFICER:
Morgan DCJ

LOWER COURT DATE OF DECISION:
27 May 2008

COUNSEL:
P Kintominas (Appellant)
M Cinque (Respondent)

SOLICITORS:
JPM Legal (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - armed robbery with offensive weapon - circumstantial evidence - Shepherd direction - Shepherd direction not required
CRIMINAL LAW - armed robbery with offensive weapon - conviction appeal - miscarriage of justice - criticism by trial judge to the jury of counsel's submission - no miscarriage
CRIMINAL LAW - armed robbery with offensive weapon - procedural fairness - alleged failure to give counsel an opportunity to be heard on trial judge's criticism of submission - trial counsel's submission to the jury states wrong principle - counsel given opportunity to address - no denial of procedural fairness
CRIMINAL LAW - armed robbery with offensive weapon - conviction appeal - procedural fairness - alleged failure to give counsel opportunity to address trial judge when trial judge had directed the jury that counsel's submission was wrong
CRIMINAL LAW - armed robbery with offensive weapon - conviction appeal - apprehended bias - apprehended bias not made out
CRIMINAL LAW - armed robbery with offensive weapon - evidence - alleged wrongful admission of evidence - evidence properly admitted

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Antoun v R [2006] HCA 2; (2006) 224 ALR 51
Burrell v Regina [2009] NSWCCA 163
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 557
Davidson v R [2009] NSWCCA 150
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Minniti v R [2006] NSWCCA 30; 159 A Crim R 394
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Keenan [2009] HCA 1; (2009) 83 ALJR 243
R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported)
R v Zaiter [2004] NSWCCA 35; 196 FLR 431
Regina v Merritt [1999] NSWCCA 29
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
Velevski v The Queen [2002] HCA 4; (2004) 76 ALJR 402

TEXTS CITED:

DECISION:
The appeal is dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2008/1691005

BEAZLEY JA
R S HULME J
LATHAM J

7 May 2010

Jason Lee REES v Regina

Judgment

  1. BEAZLEY JA:  On 27 May 2008, the appellant was found guilty by a jury of two counts of armed robbery with an offensive weapon contrary to the provisions…

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AGLC
Rees v Regina [2010] NSWCCA 84
Case
[2010] NSWCCA 84
Decision Date

CaseChat Overview and Summary

Rees appeals against his conviction for armed robbery with an offensive weapon, arguing multiple grounds of error. The trial, presided over by Morgan DCJ, involved a group of individuals who were assaulted and robbed outside a flat in Camden. The appellant and his co-offenders were accused of attacking the victims, with one victim being struck with a metal pole and another having their wallet stolen. The appellant contests several aspects of the trial, including the admissibility of certain evidence, the trial judge's handling of legal submissions, and alleged procedural unfairness.

The primary legal issues before the court were whether the trial judge erred in admitting evidence from Trudy Plackett, whether there was a miscarriage of justice due to the judge's criticism of counsel's submission without allowing counsel to respond, whether procedural fairness was compromised by the judge's actions, and if the judge should have recused herself and discharged the jury. Additionally, the court examined whether the judge should have directed the jury according to the principles in Regina v Merritt, and whether the appellant's apprehension of bias was justified.

The court found that the evidence provided by Trudy Plackett was properly admitted, as her observations were credible despite the challenging conditions. The criticism of counsel's submission by the trial judge did not constitute a miscarriage of justice, as the judge had allowed counsel to address the issue, thus ensuring procedural fairness. The court also held that the judge did not err in her handling of the Merritt direction, and there was no basis for finding the judge biased. Consequently, the appeal was dismissed, and Rees' conviction was upheld.

In summary, Rees' appeal was dismissed, and his conviction for armed robbery with an offensive weapon was upheld. The court found no errors in the trial judge's handling of the case, and the evidence was deemed properly admitted. The procedural fairness was maintained, and there was no basis for the judge's recusal or for finding bias.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his conviction on the following grounds: (1)The trial judge, Morgan DCJ, erred in law in admitting the evidence of Trudy Plackett. (2)The trial miscarried when the trial judge criticised a submission made by the appellant’s counsel at trial to the jury without affording counsel the opportunity to address her Honour on the issue, in circumstances where counsel had indicated that he wished to be heard on the Crown Prosecutor’s objections to his submissions.(3)The trial judge erred in failing to recuse herself and discharge the jury following the matter complained of in ground (2).(4)(As amended by leave of the Court): The trial judge erred in law by failing to direct the jury that, in accordance with the decision of Regina v Merritt [1999] NSWCCA 29, they should not convict unless they were satisfied beyond reasonable doubt that a wallet was found in the bedroom occupied by the appellant at premises at Cobbity, New South Wales, and that the wallet was stolen from James Park during the course of the robbery.Background The offences occurred shortly after 2 am on Saturday, 25 November 2006. At that time, a group of people (five males and four females), were gathered in a flat in Camden occupied by Bradley Guernier. A man came to the door of the flat asking for “Brad”. Shortly after that, a number of the guests, including Benjamin Leeson and Mr Park, left the flat. As they were walking on the common area of the driveway, they saw a small white car drive up and park. Mr Leeson saw three men jump out of the car: the driver, a front and a back seat passenger. The description of one of these men was consistent with the appearance of Mr Hynds, one of the appellant’s co-offenders. One of the men hit Mr Leeson around the knees, head and arms a number of times with a pole or a baseball bat. Another demanded his wallet. He told them he didn’t have one, but gave the assailants his mobile phone. Mr Park also gave evidence of being “rushed” by the man he thought had come from the back seat of the car. He was hit around his face with what he thought was “something metal”. His wallet was taken from his back pocket. The men then ran off towards Mr Guernier’s flat. Julian Franke was on the verandah of the flat at the time. He gave evidence of seeing a white Ford Laser driving up and stopping outside the flat. He saw one person get out of the car from the passenger side and one from the back seat. The guests who had remained inside the flat heard banging on the front door. One of them called the police. Jessie-Lee Blackwell gave evidence that there was an Australian man in a green jacket at the door who swung a “long, grey/silver metal pole” at her. Two other men were standing behind him. She slammed that door shut in an unsuccessful attempt to keep the attackers out. Those inside the flat gave evidence of sounds of breaking glass and kicking at the front door. A voice yelled, “Ray kick the door down”. One of the men was heard to say, “We are going to kill you if Brad doesn’t come out, we will kill the dog”. Some of the guests jumped out the window. Others hid in the wardrobe of an upstairs bedroom. Mr Guernier was one of those who had remained inside the flat. He heard someone outside the flat say, “Use the gun”. He then heard banging on the coffee table and the sound of bottles being knocked over.

Evidence

Evidence Before The Court

For the reasons which I give below, the appellant has not established a case of apprehended bias. Thus, the question whether this Court is bound to determine the bias issue first is not of critical importance. However, as one aspect of the bias question depends upon the determination whether her Honour’s directions to the jury were correct, it will be convenient to consider that matter (ground 4) before dealing with the miscarriage and bias grounds (grounds 2 and 3). In the first instance, however, I will deal with ground 1 of the appeal.Ground 1: her Honour erred in law in admitting the evidence of Trudy Plackett At the trial, Ms Plackett gave evidence that on 24 November 2006, she was entertaining three friends in her home at Catherine Field when, at about 8 pm, the appellant and the two co-offenders arrived. They stayed for a short time and, when they left, she observed from her living room window that they got into a Ford Laser motor vehicle. The car had been parked in front of the carport which ran alongside the living room window about 3 m away from the window. Ms Plackett recognised the vehicle as Mr Pitman’s, as she had seen him drive it on and off over the course of the previous month. She said that Mr Pitman got into the driver’s seat, but that Mr Hynds and the appellant remained standing on opposite sides of the car talking to each other over the roof. She heard one of them say, “Let’s go and see that guy in Camden” and the other responding, “We’ll do that later”. The two men then got into the car and they drove away. In cross-examination, Ms Plackett agreed that it was dark when she was making her observations from the living room window. She also agreed that at the time, she was holding her young baby, who was crying. It was suggested to her that her attention was therefore on the baby, rather than on what was going on around her. She denied this was so and explained that she was settling her baby to sleep and that not all of her attention was focused on the baby. Ms Plackett also gave evidence that at about 6.30 pm on Sunday 26 November, she drove past the Laser coming from the opposite direction. She identified Mr Pitman as the driver, Mr Hynds as the front passenger and the appellant in the back seat. She was challenged as to her observation of the appellant being in the car, but she reiterated, “He was sitting in the middle in the back of the car. I could see him clearly”. Ms Plackett’s partner, Mr Hine, also gave evidence. He said that at about 7.30 pm on 24 November he was sitting in the sunroom when Mr Hynds, Mr Pitman and the appellant arrived. The men stayed for about 15 minutes before leaving. He did not see how they left, but gave evidence that they had arrived in a “beigy” Ford station wagon, which he had seen Mr Pitman driving previously. One of the guests at the Plackett/Hine household that evening was Scott Chapman. He gave evidence that he was there when Mr Hynds, Mr Mitchell and the appellant arrived. He said it was dark, and they stayed for “probably 10, 15 minutes, 5 minutes”, leaving by the back gate. As far as he knew, the men had walked to the premises and he did not see any vehicle. However, he was “out the back” when they arrived and did not have an opportunity to observe how they arrived.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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