Wildsmith v The Queen - [2012] NSWCCA 116

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wildsmith v R [2012] NSWCCA 116
Hearing dates: 7 February 2012
Decision date: 04 June 2012
Before: McClellan CJ at CL at [1]
Johnson J at [67]
Rothman J at [68]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: Criminal - appeal - conviction - whether verdict inconsistent - whether verdict unreasonable or unsupported by the evidence - where evidence of witnesses was inconsistent - where witnesses may be criminally concerned.
Legislation Cited: Evidence Act 1995
Cases Cited: M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Osland v The Queen (1998) 197 CLR 316
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: David Wildsmith (Applicant)
The Crown
Representation: E Ozen (Applicant)
N Noman (Crown)
Benjamin Leonardo Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/4327
Decision under appeal

Citation:

[2010] NSWSC 495

Date of Decision:

2010-05-28 00:00:00

Before:

Kirby J

File Number(s):

2009/4327

Judgment

McCLELLAN CJ at CL: The applicant was convicted following a trial of the murder of James Tautari on 27 December 2007. He stood trial along with four co-accused: Luke Tatchell; AC; AA and SS. The applicant and Tatchell were slightly older than 18, the others were slightly younger.

All of the co-accused were convicted but only the applicant and Tatchell were convicted of murder. The other younger co-accused were acquitted of murder but convicted of manslaughter.

The applicant raises two grounds of appeal.

Ground 1: That having regard to the evidence, the verdict of the jury was unreasonable, or cannot be supported; and

Ground 2: That in light of the verdicts of manslaughter for SS, AC and AA the verdict of murder against the applicant is unsustainable.

Both grounds of appeal require a detailed consideration of the facts proved at the trial.

The deceased had been in a relationship with the mother of AC's girlfriend, AH. The Crown case was that there was a history of domestic violence in the relationship. The Crown asserted that the motive for the assault which ultimately led to the deceased's death was, at least in part, revenge for the deceased's treatment of AH's mother.

The five offenders, together with three other persons (who ultimately gave evidence for the prosecution) had gathered at the McDonalds restaurant in St Clair. It was Boxing Day and the group had planned to go together to Bent's Basin, a popular swimming hole. AC was driving his car, a Red Nissan Pulsar SSS. AC's girlfriend saw the deceased and pointed him out to some of the group saying something to the effect of "there's that Jimbo guy." The Crown alleged that the applicant and SS had a discussion concerning the possibility of an assault on the deceased. After this discussion Tatchell and AC, together with SF, drove to Tatchell's home to obtain some weapons.

After obtaining 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 Wildsmith v The Queen

Details

AGLC: Wildsmith v The Queen [2012] NSWCCA 116
Case: [2012] NSWCCA 116
Decision Date: 04 June 2012

CaseChat Overview and Summary

The appellant, Wildsmith, appealed against his conviction for various criminal offences, challenging the consistency and reasonableness of the verdict. The case was heard and determined in the court of appeal. The primary issue before the court was whether the verdict reached by the jury was inconsistent or unreasonable, given the inconsistencies in the evidence provided by the witnesses. A secondary issue was whether the verdict was unsupported by the evidence, especially considering the potential criminal involvement of some of the witnesses.

The court examined the evidence presented during the trial and noted significant inconsistencies among the witnesses' testimonies. Despite these discrepancies, the court found that the jury was entitled to assess the credibility of the witnesses and determine which evidence they found to be reliable. The court held that the jury's decision, while not without its challenges, was not so unreasonable as to warrant overturning the conviction. The court further found that the potential criminal involvement of some witnesses did not necessarily render their evidence inadmissible or unreliable, as it was for the jury to weigh the credibility of such evidence.

The appeal was ultimately dismissed by the court. The judges held that the jury had followed a proper process in assessing the evidence and reaching a verdict. The inconsistencies in the evidence did not render the verdict unreasonable or unsupported, as the jury was best placed to assess the credibility of the witnesses. The court did not find it necessary to substitute its own judgment for that of the jury. The final orders of the court confirmed the appellant's conviction on the criminal charges as determined by the original trial.

Orders