REGINA v. SCOTT [2000] NSWCCA 187

REGINA v. SCOTT [2000] NSWCCA 187

In the context of a criminal trial where the Crown bore the onus of proof and where the absent witnesses were, on the Crown case, criminally complicit with the appellant and, on the defence case, persons who may have deceived or manipulated him, it was wrong to suggest that the appellant should have called them or that their absence could support an inference adverse to the defence. The Jones v. Dunkel direction risked undermining the onus of proof and diverting the jury from assessing the critical credibility issues. The misdirection occasioned a miscarriage of justice, and neither Rule 4 nor the proviso to s.6 of the Criminal Appeal Act applied.

Jurisdiction
Australia
Judgment Date
23 May 2000
Procedural Posture
Criminal Appeal Against Conviction / Appeal From Conviction in the District Court of New South Wales
Outcome
Appeal allowed
Legal Topics
['jones V. Dunkel Direction' 'failure to Call Witnesses' 'onus and Standard of Proof' 'miscarriage of Justice' 'drug Supply']
['criminal Law' 'criminal Procedure' 'evidence'] ['jones V. Dunkel Direction' 'failure to Call Witnesses' 'onus and Standard of Proof' 'miscarriage of Justice' 'drug Supply']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal From Conviction in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the trial judge erred by giving the jury a Jones v. Dunkel direction concerning the appellant's failure to call Khoury, Daisy Davis and Phillip Arkel." 'Whether the directions concerning the non-appearance of Khoury, Daisy Davis and Phillip Arkel were inadequate.' 'Whether the asserted misdirection occasioned a miscarriage of justice and whether Rule 4 of the Criminal Appeal Rules or the proviso to s.6 of the Criminal Appeal Act should apply.']

Ratio Decidendi

In the context of a criminal trial where the Crown bore the onus of proof and where the absent witnesses were, on the Crown case, criminally complicit with the appellant and, on the defence case, persons who may have deceived or manipulated him, it was wrong to suggest that the appellant should have called them or that their absence could support an inference adverse to the defence. The Jones v. Dunkel direction risked undermining the onus of proof and diverting the jury from assessing the critical credibility issues. The misdirection occasioned a miscarriage of justice, and neither Rule 4 nor the proviso to s.6 of the Criminal Appeal Act applied.

Court Disposition

Appeal allowed

Orders

  • ['Leave to appeal granted.' 'Appeal upheld.' 'Convictions quashed.' 'New trial ordered.']