R v Noonan [2002] NSWCCA 150

R v Noonan [2002] NSWCCA 150

The trial judge's direction responding to the Crown Prosecutor's prohibited comment was not erroneous because it directed the jury to act only on the evidence and not to speculate about why Ms Noonan was not called or what she might have said, while giving an obvious reason why she may not have been called. The appellant's evidence amounted to an acknowledgment that no alibi notice had been given, so the Crown's comment on that matter without a further direction caused no substantial miscarriage of justice. In any event, the Crown case was very strong, the appellant's denial was unconvincing, the conviction was inevitable, and the appellant did not lose a real chance of acquittal.

Jurisdiction
Australia
Judgment Date
01 May 2002
Procedural Posture
Criminal Appeal Against Conviction / Appeal in the NSW Court of Criminal Appeal From a District Court Conviction; Leave to Appeal Required Under Criminal Appeal Rules R 4 and Granted
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['prohibited Comment by Crown Prosecutor' 'failure to Call De Facto Spouse as Witness' 'alibi Notice' 'jury Directions' 'proviso and Substantial Miscarriage of Justice']
['criminal Law' 'evidence' 'criminal Procedure'] ['prohibited Comment by Crown Prosecutor' 'failure to Call De Facto Spouse as Witness' 'alibi Notice' 'jury Directions' 'proviso and Substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal in the NSW Court of Criminal Appeal From a District Court Conviction; Leave to Appeal Required Under Criminal Appeal Rules R 4 and Granted

Legal Issues

  1. 1 ["Whether the Crown Prosecutor's prohibited comment on the appellant's failure to call his de facto wife, combined with the trial judge's direction, constituted a miscarriage of justice." "Whether the Crown Prosecutor's comment about the failure to lodge an alibi notice, in the alleged absence of evidence and without a trial judge's direction, constituted a miscarriage of justice." 'Whether any errors, individually or cumulatively, resulted in a substantial miscarriage of justice or should be dealt with by applying the proviso.']

Ratio Decidendi

The trial judge's direction responding to the Crown Prosecutor's prohibited comment was not erroneous because it directed the jury to act only on the evidence and not to speculate about why Ms Noonan was not called or what she might have said, while giving an obvious reason why she may not have been called. The appellant's evidence amounted to an acknowledgment that no alibi notice had been given, so the Crown's comment on that matter without a further direction caused no substantial miscarriage of justice. In any event, the Crown case was very strong, the appellant's denial was unconvincing, the conviction was inevitable, and the appellant did not lose a real chance of acquittal.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted' 'Appeal dismissed']