Winning v The Queen

Case [2003] WASCA 245


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   WINNING -v- THE QUEEN [2003] WASCA 245

CORAM:   MURRAY J

HASLUCK J
ROBERTS-SMITH J

HEARD:   23 JUNE 2003

DELIVERED          :   13 OCTOBER 2003

FILE NO/S:   CCA 199 of 2002

BETWEEN:   MARK DOUGLAS WINNING

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Whether jury should have been discharged - Assertions by co-accused at previous trial concerning events at previous trial - Jury instructed to disregard these assertions - Whether instruction to disregard sufficient in the circumstances - Further grounds of appeal - Whether it was open to jury to find accused guilty of being an accessory after the fact to an unlawful killing other than wilful murder - Application of rule in Jones v Dunkel - Whether jury should have been invited to conclude from the failure by the Crown to call a co-offender that her evidence would not have assisted the Crown case

Legislation:

Criminal Code, s 10, s 562, s 594, s 595, s 599D, s 689

Result:

Leave to appeal refused

Category:    A

Representation:

Counsel:

Applicant:     Mr T F Percy QC & Mr N J Mullany

Respondent:     Mr R E Cock QC & Mr C Williams

Solicitors:

Applicant:     Pearman Grantham

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Avis v The Queen [2002] WASCA 250

Crofts v The Queen (1996) 186 CLR 427

Dyers v The Queen (2002) 210 CLR 285

Festa v The Queen (2001) 208 CLR 593

Gilbert v The Queen (2000) 201 CLR 414

Hobby v The Queen; Zaghet v The Queen, unreported; CCA SCt of WA, Library No 990013, 22 January 1999

Jones v Dunkel (1959) 101 CLR 298

M v The Queen (1994) 181 CLR 487

Mraz v The Queen (1955) 93 CLR 493

R v Apostilides (1984) 154 CLR 563

R v Barlow (1997) 188 CLR 1

R v Carter & Savage, Ex parte Attorney-General [1990] 2 Qd R 371

R v Dawson [1961] VR 773

R v English (1993) 10 WAR 355

R v Evans & Lewis [1969] VR 858

R v Firth [1938] 3 All ER 783

R v Kneebone (1999) 47 NSWLR 450

R v McLean [2001] 3 NZLR 794

R v Peckham (1935) 25 Cr App Rep 125

R v Richards (1877) 2 QBD 311

R v Stone [1981] VR 737

R v Weaver [1968] 1 QB 353

R v Whittaker (1993) 68 A Crim R 476

R v Wright [1999] 3 VR 355

Ross v The King (1922) 30 CLR 246

RPS v The Queen (2000) 199 CLR 620

Whitehorn v The Queen (1983) 152 CLR 657

Wilde v The Queen (1988) 164 CLR 365

Wilson v Dobra (1955) 57 WALR 95

Winning v The Queen [2002] WASCA 44

Case(s) also cited:

Fonseka v The Queen [2003] WASCA 111

  1. MURRAY J:  In this matter, I have had the benefit of reading in draft the reasons for decision of both Hasluck and…

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Winning v The Queen [2003] WASCA 245
Case
[2003] WASCA 245
Decision Date

CaseChat Overview and Summary

In the case of Winning v The Queen, the appellant challenged his conviction for being an accessory after the fact to an unlawful killing, distinct from wilful murder. The proceedings took place in the High Court of Australia. The appellant contested both the conduct of the trial and the legal principles applied by the jury in reaching their verdict. The appellant argued that the trial judge should have discharged the jury due to inappropriate statements made by a co-accused during the previous trial, which the jury was directed to disregard. He also contended that the jury should not have been permitted to convict him of being an accessory after the fact without the jury being invited to infer from the Crown's failure to call a co-offender that her testimony would not have supported the Crown's case.

The legal issues before the court encompassed whether the jury's exposure to the statements made by the co-accused necessitated a discharge of the jury, and if the instruction given to the jury to disregard these statements was adequate. Additionally, the court had to determine whether the jury's verdict was legally sound in convicting the appellant of being an accessory after the fact without a clear link to wilful murder. Furthermore, the court examined whether the jury should have been invited to infer from the Crown's decision not to call a co-offender that her evidence would not have assisted the Crown's case, as per the rule in Jones v Dunkel.

The High Court found that while the statements made by the co-accused during the previous trial were inappropriate, the trial judge's instruction to the jury to disregard these statements was sufficient, and thus, there was no need to discharge the jury. The court held that it was legally permissible for the jury to convict the appellant of being an accessory after the fact, even if the act did not constitute wilful murder. The court further determined that the trial judge was not obligated to invite the jury to infer from the Crown's failure to call a co-offender that her testimony would not have aided the Crown's case. Consequently, the appellant's appeal was dismissed. The High Court upheld the conviction, affirming the jury's decision as legally sound and appropriate under the circumstances presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HASLUCK J

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Ratio Decidendi

Legal Principle Established

Established by: HASLUCK J

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