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'
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…
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.
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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.