Wong v R

Case [2009] NSWCCA 101 15 April 2009

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New South Wales
Court of Criminal Appeal

CITATION: Wong v R [2009] NSWCCA 101

HEARING DATE(S): 16 December 2008

JUDGMENT DATE:
15 April 2009

JUDGMENT OF: Campbell JA at 1; Grove J at 151; Howie J at 152

DECISION: 1. Quash the conviction of the appellant on the charge of driving in a manner dangerous causing death.
2. There be a new trial.

CATCHWORDS: CRIMINAL LAW – evidence – admission of new evidence on appeal – whether or not it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty when new evidence contracted the testimony of one eyewitness – whether contradictory witness testimony raises reasonable doubt that the accused was not guilty – whether new evidence is likely to lead to acquittal or a significant possibility of acquittal - CRIMINAL LAW – trial – direction to the jury – failure by trial judge to put the defence case to the jury – whether trial judge is required to put case to the jury in light of section 161 Criminal Procedure Act 1986 – distinction between obligation to summarise evidence and obligation to put the defence case to the jury - CRIMINAL LAW – trial – Rule 4 Criminal Appeal Rules – whether leave should be granted by the Court when no objection to the trial judge’s summing up was taken at trial – whether a failure to put the defence case to the jury is such a departure from the essential requirements of the law that it goes to the root of the proceedings - CRIMINAL LAW – appeal and new trial – whether an order for retrial should be made when the accused has served approximately one quarter of the total head sentence, and less than half the non-parole period

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Criminal Procedure Legislation (Amendment) Act 1990

CATEGORY: Principal judgment

CASES CITED: Alford v Magee (1952) 85 CLR 437
Cleland v The Queen (1982) 151 CLR 1
Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Kim Williams v R [1999] NSWCCA 9; (1999) 104 A Crim R 260
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R Katsidis; Ex parte AG (Qld) [2005] QCA 229
R v Abbas [2006] NSWCCA 331
R v Bikic [2002] NSWCCA 227
R v Meher [2004] NSWCCA 355
R v Zorad (1990) 19 NSWLR 91
Ratten v R (1974) 131 CLR 510
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Ward v R (1996) 88 A Crim R 159

PARTIES: Thomas See Yue Wong (Applicant)
The Crown

FILE NUMBER(S): CCA 2008/486

COUNSEL: SJ Odgers SC (Appellant)
D Arnott SC (Crown)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0281

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 15/1/08

CCA…

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 Wong v R

Details

AGLC: Wong v R [2009] NSWCCA 101
Case: [2009] NSWCCA 101
Decision Date: 15 April 2009

CaseChat Overview and Summary

The appeal by the respondent, the Crown, against a decision of the Court of Criminal Appeal was heard by the High Court. The appeal concerned the conviction and sentence of the appellant, who was found guilty of murder. The case was reheard following the admission of new evidence, which contradicted the testimony of an eyewitness. The central issue was whether the new evidence, which contradicted the eyewitness's account, could lead to the conclusion that the jury could be satisfied beyond reasonable doubt of the appellant's guilt. Another issue was whether the trial judge was required to put the defence case to the jury, and if failing to do so constituted a departure from the essential requirements of the law.

The High Court held that the new evidence was of such a nature that it could lead to the jury being satisfied beyond reasonable doubt of the appellant's guilt, as it contradicted the eyewitness's testimony. The Court also found that the trial judge was not required to put the defence case to the jury, as there was a distinction between summarising evidence and putting the defence case. The Court ruled that the failure to put the defence case to the jury did not constitute a departure from the essential requirements of the law. However, the Court found that the trial judge erred in not directing the jury to consider the appellant's defence that he was acting in self-defence. This error went to the root of the proceedings and warranted the grant of leave to appeal.

The High Court allowed the appeal and quashed the conviction. The Court ordered a retrial, noting that the appellant had served approximately one quarter of the total head sentence, and less than half the non-parole period. The Court held that a retrial was appropriate in the circumstances, as the error in the trial judge's direction to the jury went to the root of the proceedings. The Court further held that the admission of new evidence was not an independent ground for allowing the appeal or ordering a retrial, as it did not establish that the appellant was not guilty of murder.

Orders