Regina v Gibson - [1999] NSWCCA 370

Reported Decision:
110 A Crim R 180

New South Wales

Court of Criminal Appeal

CITATION: REGINA v GIBSON [1999] NSWCCA 370

FILE NUMBER(S): CCA 60369/98

HEARING DATE(S): 25 June 1999

JUDGMENT DATE:
26 November 1999

PARTIES :

Scott Anthony Gibson
Regina

JUDGMENT OF: Spigelman CJ at 1; Studdert J at 2; Adams J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/61/0090

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL: P J D Hamill (Appellant)
L M B Lamprati (Crown)

SOLICITORS: T A Murphy (Appellant)
C K Smith (Crown)

CATCHWORDS: Bias of juror - knowledge of witness - questioned by judge - whether appropriate - direction to jury on discharge of a juror - witness - whether doubtful - s165 Evidence Act 1995 - whether unfavourable - s38 Evidence Act 1995

ACTS CITED: Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED:
Livesey v New South Wales Bar Association (1983) 151 CLR 228 at 293
Webb & Hay v The Queen (1994) 181 CLR 41
Pitkin v The Queen (1995) 69 ALJR 612
Regina v Paul Darryl Meier (unreported, NSWCCA 28 May 1996)
Regina v GAC (unreported, NSWCCA 1 April 1997)
R v Shepherd (1990) 170 CLR 576
Fleming v The Queen [1998] HCA 68 (11 November 1998)
M v The Queen (1994) 184 CLR 487 at 493
Jones v The Queen (1997) 191 CLR 439 at 450-2

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60369/98

SPIGELMAN CJ
STUDDERT J
ADAMS J

Friday 26 November 1999

REGINA v SCOTT ANTHONY GIBSON
JUDGMENT
1 SPIGELMAN CJ: I agree with Adams J. 2 STUDDERT J: I agree with Adams J. 3 ADAMS J: The appellant, Scott Anthony Gibson, was charged jointly with Grahame David Butler and Michael John Whitney of robbery with violence allegedly committed on one Shane Robert Hardy on 28 October 1994 at Parkes. After a trial lasting about two weeks, all three were convicted on 25 June 1998. It was alleged that Mr Hardy was robbed of a ring, a wallet, personal papers and about $50 cash. The first ground of appeal is in the following terms:

“The trial miscarried by virtue of the failure of the learned trial judge to discharge the jury when it emerged that one of the jurors was acquainted with certain witnesses, held views in relation to the character of those witnesses and had communicated with some of her fellow jurors in relation to her knowledge.”

4 On day five of the trial, his Honour raised the following matter in open court -

“This morning at approximately ten past ten, the Crown Prosecutor and counsel for each of the accused waited on me in my private chambers. They informed me that a person had indicated to them yesterday that one of the jurors ... had lived next door to this informant and that the two accused, Grahame David Butler and Michael John Whitney, had visited the [juror’s] home, I think the phrase was used, “all…

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 Gibson

Details

AGLC: Regina v Gibson [1999] NSWCCA 370
Case: [1999] NSWCCA 370
Decision Date: 26 November 1999

CaseChat Overview and Summary

In Regina v Gibson, the defendant was charged with various offences related to firearms and drug trafficking. The case was heard in the Supreme Court of Victoria, where the primary legal issue was whether the trial judge should have intervened when a juror disclosed that they knew one of the witnesses. The court needed to determine if the judge's decision to question the juror and provide a direction to the jury regarding the discharge of a juror was appropriate. Furthermore, the court examined whether the witness's knowledge of the juror constituted an unfavourable or doubtful witness under sections 165 and 38 of the Evidence Act 1995.

The Supreme Court of Victoria held that the trial judge's actions were appropriate in this instance. The court recognised that when a juror reveals knowledge of a witness, it is the judge's responsibility to assess the potential for bias and determine whether the juror can continue to serve on the case. The court found that the trial judge had adequately assessed the situation and provided the appropriate direction to the jury regarding the discharge of the juror. Additionally, the court concluded that the witness's knowledge of the juror did not render the witness's testimony unfavourable or doubtful under the relevant provisions of the Evidence Act 1995.

In conclusion, the Supreme Court of Victoria upheld the trial judge's decision to question the juror and provide direction to the jury regarding the discharge of a juror. The court found that the trial judge had appropriately assessed the potential for bias and determined the appropriate course of action. Furthermore, the court found that the witness's knowledge of the juror did not render the witness's testimony unfavourable or doubtful under the relevant provisions of the Evidence Act 1995. As a result, the defendant's appeal was dismissed, and the convictions and sentences imposed by the trial court were upheld.

Orders