R v Fernando & Anor [1999] NSWCCA 66

R v Fernando & Anor [1999] NSWCCA 66

The Court held that all evidence challenged by the appellants, including police admissions, prior statements, expert and lay evidence on intelligence, and circumstantial evidence, was properly admitted and the trial judge's discretion was correctly exercised under the Evidence Act. Directions to the jury were sufficient to prevent impermissible prejudice arising from the joint trial. The grounds of appeal against conviction failed, as none led to miscarriage of justice. Sentences of life imprisonment for murder were upheld, as the case fell within the worst category due to aggravating circumstances and absence of mitigating objective factors.

Parties
Prosecutor: Regina (The Crown); Appellant/accused: Vester Allan Fernando; Appellant/accused: Brendan Fernando
Jurisdiction
Australia
Judgment Date
14 April 1999
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Conviction and Sentence Appeals
Outcome
Appeals against conviction dismissed; Leave to appeal against sentence granted; Sentence appeals dismissed.
Legal Topics
Murder, Admissibility of Confessions, Voluntariness of Admissions, Hostile Witness, Unreliability of Witness, Hearsay Evidence, Failure to Call Witness, Reopening Crown Case, Common Purpose Liability, Comment on Accused Not Giving Evidence, Separate Trials, Cross Examination by Co Accused, Unsafe and Unsatisfactory Verdict, Sentencing – Life Sentence, Worst Type of Case
Criminal Law Murder Admissibility of Confessions Voluntariness of Admissions Hostile Witness Unreliability of Witness Hearsay Evidence Failure to Call Witness +8 more

Case Brief

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Parties

Regina (The Crown)

Prosecutor

Vester Allan Fernando

Appellant/accused

Brendan Fernando

Appellant/accused

Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Conviction and Sentence Appeals

Legal Issues

  1. 1 Did the trial judge err in admitting Brendan Fernando's police admissions?
  2. 2 Was the evidence of Vester Fernando's possession of machete admissible against Brendan Fernando?
  3. 3 Did the trial judge err in granting leave to the Crown to cross-examine Michael Jackson under Evidence Act s38?

Ratio Decidendi

The Court held that all evidence challenged by the appellants, including police admissions, prior statements, expert and lay evidence on intelligence, and circumstantial evidence, was properly admitted and the trial judge's discretion was correctly exercised under the Evidence Act. Directions to the jury were sufficient to prevent impermissible prejudice arising from the joint trial. The grounds of appeal against conviction failed, as none led to miscarriage of justice. Sentences of life imprisonment for murder were upheld, as the case fell within the worst category due to aggravating circumstances and absence of mitigating objective factors.

Court Disposition

Appeals against conviction dismissed; Leave to appeal against sentence granted; Sentence appeals dismissed.

Orders

  • Vester Allan Fernando: Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal dismissed.
  • Brendan Fernando: Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal dismissed.