Regina v Gilbert Adam

Case [1999] NSWCCA 197


Reported Decision:

47 NSWLR 267

New South Wales


Court of Criminal Appeal

CITATION: Regina v Gilbert Adam [1999] NSWCCA 197
FILE NUMBER(S): CCA 60017/99
HEARING DATE(S): 28 May 1999
JUDGMENT DATE:
23 July 1999

PARTIES :


Regina v Gilbert Adam (aka Daewood Odishou)
JUDGMENT OF: Spigelman CJ; James J; Bell J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S) : 70218//98
LOWER COURT JUDICIAL OFFICER: Wood CJ at CL
COUNSEL: Appellant: P Byrne SC/CC Waterstreet
Respondent: CK Maxwell QC/GE Smith
SOLICITORS: Appellant: Murphy's Lawyers Inc
Respondent: R Gray
CATCHWORDS: CRIMINAL LAW; murder; appeal against conviction; verdict; whether unsafe and unsatisfactory; CRIMINAL LAW & PROCEDURE; application for discharge of jury; inadvertent and potentially prejudicial event ; (material before jury not admitted into evidence); whether direction overcame prejudice; EVIDENCE; hearsay rule; exceptions; evidence of previous representation admitted because relevant for a purpose other than proof of the fact intended to be asserted by the representation; (Evidence Act 1995 (NSW) s60); relevance ; whether 'purpose' to be ascertained subjectively or objectively; EVIDENCE; hearsay; exceptions; criminal proceedings where maker available; (Evidence Act 1995 (NSW) s66); 'fresh in the memory'
ACTS CITED: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
CASES CITED:
M v The Queen (1994) 181 CLR 487
Jones v The Queen (1997) 191 CLR 439
Crofts v The Queen (1996) 186 CLR 427
R v Philip Harold Bell (unreported, CCA, 8 October 1998)
Blewitt v The Queen (1988) 62 ALJR 503
Hammer v S Hoffnung & Co Limited (1928) 28 SR (NSW) 280
Regina v Hawes (1994) 35 NSWLR 294
Regina v Thompson (1964) QWN 61
Regina v Hall (1986) 1 Qd R 462
Regina v GAC (NSWCCA 1 April 1997)
Lee v Regina (1998) HCA 60; (1998) 157 ALR 394
Graham v The Queen (1998) 72 ALJR 1491
Waterford v The Commonwealth (1986-87) 163 CLR 54
DECISION: See paragraph 143

IN THE COURT OF
CRIMINAL APPEAL

60017/99

SPIGELMAN CJ
JAMES J
BELL J

Friday, 23 July 1999

REGINA v Gilbert ADAM (aka Daewood ODISHOU)

JUDGMENT


1    THE COURT: This is an appeal by Gilbert Adam against his conviction and sentence following a trial before Wood CJ at CL and a jury which concluded on 24 December 1998. On that date the appellant was found guilty of the murder of David Carty, an off-duty police officer, who was killed on the evening of 18 April 1987 in the car park of the Cambridge Tavern Hotel, Fairfield.

2 The appellant was jointly indicted with his brother, Richard Adam. The appellant was also indicted on a count of assault occasioning actual bodily harm. This count alleged that the appellant had assaulted an off-duty police officer, Michelle Auld. The jury returned a verdict of not guilty by direction in respect of this count. Richard Adam was found not guilty of murder and not guilty of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm but guilty of the statutory alternative of maliciously inflicting grievous bodily harm…

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AGLC
Regina v Gilbert Adam [1999] NSWCCA 197
Case
[1999] NSWCCA 197
Decision Date

CaseChat Overview and Summary

Gilbert Adam was convicted of murder and appealed against his conviction. The appeal centred on whether the verdict was unsafe and unsatisfactory, given an inadvertent and potentially prejudicial event that occurred during the trial. The jury was exposed to material not admitted into evidence, and the court needed to determine if the direction given to the jury overcame any prejudice caused by this event. The appeal also addressed the admissibility of hearsay evidence and its relevance under the Evidence Act 1995 (NSW). Specifically, the court considered whether the 'purpose' of the evidence should be determined subjectively or objectively and whether the evidence was admissible under the exception for criminal proceedings where the maker is available, particularly if it was 'fresh in the memory'.

The court examined the hearsay rule and its exceptions, focusing on whether the evidence of previous representation was relevant for a purpose other than proving the fact intended to be asserted by the representation, as per section 60 of the Evidence Act 1995 (NSW). Additionally, the court assessed whether the evidence was admissible under section 66 of the Act, considering if it was 'fresh in the memory'. The court determined that the prejudicial event did not render the verdict unsafe and unsatisfactory, as the direction provided to the jury effectively mitigated any potential prejudice. The court also concluded that the hearsay evidence was relevant and admissible under the specified exceptions, considering both the subjective and objective aspects of its purpose.

The court found that the verdict was safe and satisfactory, despite the inadvertent exposure of the jury to material not admitted into evidence. The direction provided to the jury effectively addressed any potential prejudice, ensuring the fairness of the trial. Furthermore, the court upheld the admissibility of the hearsay evidence under the relevant exceptions of the Evidence Act 1995 (NSW), considering both the subjective and objective purposes of the evidence and its 'fresh in the memory' status. The appeal was ultimately dismissed, affirming the conviction.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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