Regina v Baker - [1999] NSWCCA 129

CITATION: Regina -v- Baker [1999] NSWCCA 129

FILE NUMBER(S): CCA 60485/97

HEARING DATE(S): 06/04/99

JUDGMENT DATE:
28 May 1999

PARTIES :

Regina
Mark John BAKER

JUDGMENT OF: Wood CJatCL at 1; Ireland J at 2; Kirby J at 74

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/3054

LOWER COURT JUDICIAL OFFICER: Cantrill ADCJ

COUNSEL: P R Boulten
LMB Lamprati

SOLICITORS: TA Murphy
SE O'Connor

CATCHWORDS: Criminal law - charge of maliciously wound with intent to murder (S 27 Crimes Act, 1900) alternative charge maliciously wound with intent to do grievous bodily harm ( S 33 Crimes Act, 1900) - Judge sitting without jury - findings of not guilty of charges under Ss 27 and 33 but guilty of statutory alternative charge of malicious wounding pursuant to S 35 of the Crimes Act - failure of trial judge to refer to potential unreliability of complainant's evidence - warning warranted under S 165 of the Evidence Act, 1995 - failure to refer to principles of law concerning lies told by appellant - hence breach of S 33(2), S 33(3) of the Criminal Procedure Act, 1986 attracting the second limb of S 6(1) of the Criminal Appeal Act, 1912.

ACTS CITED: Crimes Act, 1900 - Ss 27, 33 and 35
Criminal Procedure Act, 1986 - S 33(2) and S 33(3)
Criminal Appeal Act - S 6(1)
Evidence Act, 1995 - S 165

CASES CITED:
R -v- Coleman (1990) 19 NSWLR 467
Stokes & Difford (1990) 51 A Crim R 25
R -v- Murray (1987) 11 NSWLR 12 @ 19
Longman -v- The Queen (1989) 168 CLR 79 @ 107
Fleming -v- Regina 158 ALR 379
Edwards -v- The Queen (1993) 178 CLR 191
R -v- Lucan (1981) 1 QB 720
Edmunds -v- Edmunds & Ayscough (1935) VLR 177

DECISION: Appeal allowed; conviction and sentence quahsed; new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL
No. 60485/97
WOOD CJ at CL
IRELAND J
KIRBY J

FRIDAY 28 MAY 1999

Regina v Mark John BAKER
JUDGMENT
1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Ireland J. I agree with his reasons and the orders he proposes.

IN THE COURT OF
CRIMINAL APPEAL

60485/97
WOOD CJ at CL
IRELAND J
KIRBY J

Friday, 28 May, 1999

REGINA -v- Mark John BAKER

JUDGMENT

2 IRELAND J: The appellant, Mark John Baker, was indicted on 12 August, 1997 before his Honour Acting Judge Cantrill in the Campbelltown District Court on two counts, alleging that he on 23 November, 1996 at Minto in the State of New South Wales did maliciously wound Linda Baker with intent to murder her in contravention of S 27 of the Crimes Act, 1900 and in the alternative, that he on the same date and at the same place did maliciously wound Linda Baker with intent to do grievous bodily harm in contravention of S 33 of the Crimes Act, 1900.
3 Each of these offences carries a maximum penalty…

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 Regina v Baker

Details

AGLC: Regina v Baker [1999] NSWCCA 129
Case: [1999] NSWCCA 129
Decision Date: 28 May 1999

CaseChat Overview and Summary

In Regina v Baker, the defendant was charged with maliciously wounding with intent to murder and an alternative charge of maliciously wounding with intent to do grievous bodily harm. The matter was heard before a judge sitting without a jury, who found the defendant not guilty of the primary charges but guilty of the statutory alternative charge of malicious wounding pursuant to Section 35 of the Crimes Act. The defendant appealed against the conviction on the grounds that the trial judge failed to consider the potential unreliability of the complainant's evidence, which necessitated a warning under Section 165 of the Evidence Act, 1995. Furthermore, the trial judge did not address the principles of law concerning the lies told by the defendant, which resulted in a breach of Sections 33(2) and 33(3) of the Criminal Procedure Act, 1986.

The court had to determine whether the trial judge's failure to refer to the potential unreliability of the complainant's evidence and the principles of law concerning the defendant's lies constituted a significant error. The appeal hinged on whether these omissions were substantial enough to warrant a conviction appeal under the second limb of Section 6(1) of the Criminal Appeal Act, 1912. The court had to carefully assess the gravity of these errors in the context of the entire trial and their impact on the fairness of the proceedings. The appeal court found that the trial judge's omissions did indeed amount to a significant error that affected the fairness of the trial.

In its decision, the court held that the trial judge's failure to warn about the potential unreliability of the complainant's evidence and to address the principles of law concerning the defendant's lies breached the provisions of the Criminal Procedure Act, 1986. This breach attracted the second limb of Section 6(1) of the Criminal Appeal Act, 1912, leading to the quashing of the conviction. The court ordered a re-trial, emphasising the importance of adhering to the principles of fairness and ensuring that all relevant evidence and legal principles are properly considered in criminal trials.

Orders