Regina v Covill - [2000] NSWCCA 231

Reported Decision: 114 A Crim R 111

New South Wales

Court of Criminal Appeal

CITATION: Regina v Covill [2000] NSWCCA 231

FILE NUMBER(S): CCA 60106/99

HEARING DATE(S): 6 June 2000

JUDGMENT DATE:
21 June 2000

PARTIES :

Regina v Kevin John Covill

JUDGMENT OF: Giles JA at 1; Grove J at 62; Greg James J at 63

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0585 & 98/11/0409

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : M C Marien - Crown
W C Terracini SC - Applicant

SOLICITORS: S E O'Connor, Director of Public Prosecutions - Crown
Saunders & Company - Applicant

CATCHWORDS: MALICIOUS WOUNDINGS - conviction and sentence appeals - one conviction appeal upheld because of conceded misdirection as to appellant's election not to give evidence - RPS v The Queen (2000) HCA 3 referred to - other conviction appeal dismissed - no error in declining to give a direction as to the unreliability of particular evidence - Evidence Act s 165, R v Lewis (CCA, 8 September 1998) and R v Flood (1999) NSWCCA 198 referred to - no error in declining to give a direction as to an alternative case of self-defence - no miscarriage of justice because appellant asked in cross-examination whether he thought a Crown witness was motivated to tell lies, although question should not have been asked - R v Uhrig (CCA, 24 October 1996), Palmer v The Queen (1998) 193 CLR 1, R v Javanovic (1997) 42 NSWLR 520, R v AH (CCA, 27 November 1997), R v GET (CCA, 15 June 1998) referred to - jury's verdict not unreasonable or unsupportable having regard to the evidence - M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439, Fleming v R (1998) 158 ALR 379, R v McKnoulty (1995) 77 A Crim R 333 referred to - new trial as to one offence and need for resentencing on other offences.

DECISION: As at the first trial - (1) On the Crown's concession allow the appeal; (2) Set aside the conviction and quash the sentence; (3) Order a new trial. As at the second trial - (1) Dismiss the appeal against conviction; (2) Grant leave to appeal against the sentence and the remaining sentences passed on the appellant, including the sentences passed following the pleas of guilty to the additional indictment; (3) Quash all the sentences; (4) Remit to the District Court of New South Wales the sentencing of the appellant.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
CCA 60106/99

DC 97/11/0585 & 98/11/0409

GILES JA

GROVE J

GREG JAMES J

Wednesday 21 June 2000

R v COVILL

JUDGMENT
1 GILES JA: The court made orders at the conclusion of the hearing of the appeal, stating that reasons would be given later. These are my reasons for joining in the orders.

The trials

2 In a trial commencing on 5 August 1998 the appellant pleaded…

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 Covill

Details

AGLC: Regina v Covill [2000] NSWCCA 231
Case: [2000] NSWCCA 231
Decision Date: 21 June 2000

CaseChat Overview and Summary

In Regina v Covill, the Court of Criminal Appeal of New South Wales considered appeals against both conviction and sentence. The appellant, Covill, was convicted of malicious wounding and other offences and appealed against his convictions and the severity of his sentences. The appeal against conviction focused on several issues, including the trial judge's direction regarding the appellant's decision not to give evidence, the reliability of particular evidence presented, and the trial judge's refusal to direct the jury on an alternative case of self-defence. The appeal against sentence concerned the overall harshness of the sentences imposed.

The court first examined whether the trial judge had erred in not directing the jury regarding the appellant's decision not to give evidence. It found that the appellant's election not to testify was a matter for the jury to consider, and that the trial judge's omission amounted to a misdirection. This error, conceded by the Crown, warranted the appellant's conviction on one count to be quashed. The court referenced RPS v The Queen (2000) HCA 3 to support its reasoning on this point. The remaining convictions were upheld as the court found no error in the trial judge's handling of the evidence and the jury's instructions on self-defence.

Furthermore, the court addressed the appellant's claim that a question asked during cross-examination, which should not have been posed, led to a miscarriage of justice. The court determined that, while the question was improper, the jury's verdict was not unreasonable given the evidence. It cited several authorities, including M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439, to support its conclusion that the appellant's right to a fair trial had not been compromised. The court also noted that the jury's verdict was consistent with the evidence presented and did not constitute a miscarriage of justice.

As a result of the findings, the court ordered a new trial on one count of malicious wounding and directed that the appellant be resentenced on the other offences. This decision reflects the court's careful consideration of the evidence, legal principles, and the rights of the appellant in reaching its conclusion.

Orders