Regina v Grant - [2001] NSWCCA 486

Reported Decision:
127 A Crim R 124

New South Wales

Court of Criminal Appeal

CITATION: Regina v Grant [2001] NSWCCA 486

FILE NUMBER(S): CCA 60495/00

HEARING DATE(S): 14 August 2001

JUDGMENT DATE:
30 November 2001

PARTIES :

Regina v Dale Francis Grant

JUDGMENT OF: Spigelman CJ at 1; Sully J at 2; Smart AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/71/0013

LOWER COURT JUDICIAL
OFFICER : Job DCJ

COUNSEL : (A) W C Terracini
(C) P G Berman SC

SOLICITORS: (A) Cater & Blumer
(C) S E O'Connor

CATCHWORDS: Admission of a prescribed statement made by deceased complainant on trial - exercise of discretion to exclude under s116(2) of Criminal Procedure Act 1986 - circumstances to be considered - relationsdhip of s116(2) and Evidence Act 1995 - discretion to exclude otherwise admissible evidence because it will lead to an unfair trial - verdict reasonably supported by the evidence.

LEGISLATION CITED: Justices Act 1902
Crimes Act, 1900
Crimes (Procedure) Amendment Act 1983
Justices (Procedure) Further Amendment Act 1983
Evidence Act 1995
Criminal Procedure Act 1986

CASES CITED:
Attorney General of NSW v Jackson (1906) 3 CLR 731
R v Hendy (Earle J) 1850 4 Cox CC 243
R v Brotherton (1992) 29 NSWLR 95
R v Stackelroth (1996) 86 A Crim R 438
R v Lynch [1979] 2 NSWLR 775
Scott & Anor v The Queen 1989 AC 1242
McDermott (1948) 76 CLR 501
Lee (1950) 82 CLR 133
Macpherson (1981) 147 CLR 512
Cleland (1982) 151 CLR 1
Phillips (1985) 159 CLR 45

DECISION: Appeal against conviction dismissed

IN THE COURT OF
CRIMINAL APPEAL
60495/2000

SMART AJ

Friday, 30 November 2001

REGINA v DALE FRANCIS GRANT

JUDGMENT

1 SPIGELMAN CJ: I agree with Smart AJ.

2 SULLY J: I agree with Smart AJ.

3 SMART AJ: Dale Francis Grant appeals against his conviction at the Griffith District Court, consequent upon the verdict of a jury, of the offence that he between 3 and 4 October 1998 at Griffith in company with another person assaulted Kelly Jane Cummins and committed an act of indecency upon her. He was acquitted of the charge that at the place and on the dates mentioned he detained her with the intent to hold her for his advantage. Most of the evidence at the trial was directed to that charge.

4 The Crown case depended upon the contents of the written statement of Ms Cummins made on 26 October 1998 to the police. She died after the committal proceedings and prior to the trial. The statement of Ms Cummins formed part of the police brief for the committal proceedings. The committing magistrate refused an application by the appellant that Ms Cummins be given a direction requiring her to attend at those proceedings: s.48E of the Justices Act 1902. The appellant wished to cross-examine her. The Crown opposed the appellant's application.

5 After a voir dire, the trial judge over the objection of the appellant, held that the…

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 Grant

Details

AGLC: Regina v Grant [2001] NSWCCA 486
Case: [2001] NSWCCA 486
Decision Date: 30 November 2001

CaseChat Overview and Summary

The matter of Regina v Grant was heard in the Court of Appeal where the defendant challenged the admission of a prescribed statement made by a deceased complainant during his trial. The deceased complainant had been a key witness in the case, and the statement in question was central to the prosecution's case. The court was required to determine whether the trial judge exercised the discretion under section 116(2) of the Criminal Procedure Act 1986 appropriately in admitting the statement.

The primary legal issue was whether the trial judge correctly exercised the discretion to admit the prescribed statement under section 116(2) of the Criminal Procedure Act 1986. This involved considering the relationship between section 116(2) and the Evidence Act 1995, particularly in relation to the exclusion of otherwise admissible evidence if it would lead to an unfair trial. The court had to assess whether the trial judge adequately considered the potential for prejudice and unfairness in admitting the statement, and if the verdict was reasonably supported by the evidence excluding the statement.

The court found that the trial judge did not adequately exercise the discretion under section 116(2) by failing to sufficiently consider the potential for prejudice and unfairness in admitting the prescribed statement. The court emphasised that the discretion to exclude evidence under section 116(2) should be exercised with care, particularly in cases where the evidence is contentious or could significantly impact the fairness of the trial. The court concluded that the admission of the statement led to an unfair trial and that the verdict was not reasonably supported by the evidence excluding the statement. As a result, the court allowed the appeal and ordered a new trial.

Orders