Gabriel, Derek v The Queen [1997] FCA 561

Gabriel, Derek v The Queen [1997] FCA 561

The appeal was allowed because the Crown's references to robbery and Mr Linarejos' evidence placed inadmissible and seriously prejudicial bad character and tendency material before the jury, prejudice that could not be cured by direction. The appellant's responses in cross-examination did not amount to putting his good character in issue; alternatively any leave should have been confined to prior acts involving use or threatened use of a stabbing instrument. The wrongful admission of prior criminal history and robbery material could reasonably have affected the jury's rejection of the appellant's evidence on the central issue, so the Crown did not satisfy the proviso.

Jurisdiction
Australia
Judgment Date
25 June 1997
Procedural Posture
Criminal Appeal Against Conviction and Sentence From the Supreme Court of the Australian Capital Territory / Appeal
Outcome
Appeal allowed; conviction and sentence set aside; new trial ordered.
Legal Topics
['recklessly Inflicting Grievous Bodily Harm' 'self Defence' 'tendency Evidence' 'character Evidence' 'prior Convictions' 'unfair Prejudice' 'cross Examination of Accused' 'miscarriage of Justice' 'proviso in Criminal Appeals']
['criminal Law' 'evidence'] ['recklessly Inflicting Grievous Bodily Harm' 'self Defence' 'tendency Evidence' 'character Evidence' 'prior Convictions' 'unfair Prejudice' 'cross Examination of Accused' 'miscarriage of Justice' 'proviso in Criminal Appeals']

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Procedural Posture

Criminal Appeal Against Conviction and Sentence From the Supreme Court of the Australian Capital Territory / Appeal

Legal Issues

  1. 1 ['Whether the Crown opening and evidence from Mr Linarejos referring to robbery unfairly prejudiced the appellant and required discharge of the jury.' 'Whether the appellant put his good character in issue so as to permit Crown cross-examination on his prior criminal history.' 'Whether any rebuttal character evidence should have been confined to the aspect of character raised by the appellant.' 'Whether the wrongful admission of prejudicial evidence caused a substantial miscarriage of justice or deprived the appellant of a fair chance of acquittal.']

Ratio Decidendi

The appeal was allowed because the Crown's references to robbery and Mr Linarejos' evidence placed inadmissible and seriously prejudicial bad character and tendency material before the jury, prejudice that could not be cured by direction. The appellant's responses in cross-examination did not amount to putting his good character in issue; alternatively any leave should have been confined to prior acts involving use or threatened use of a stabbing instrument. The wrongful admission of prior criminal history and robbery material could reasonably have affected the jury's rejection of the appellant's evidence on the central issue, so the Crown did not satisfy the proviso.

Court Disposition

Appeal allowed; conviction and sentence set aside; new trial ordered.

Orders

  • ['The appeal be allowed.' 'The conviction be set aside.' 'There be a new trial.']