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

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

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 Winning v The Queen

Details

AGLC: Winning v The Queen [2003] WASCA 245
Case: [2003] WASCA 245
Decision Date: 13 OCTOBER 2003

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