JONES v R [2005] NSWCCA 443

JONES v R [2005] NSWCCA 443

The Crown's questioning and the judge's directions concerning Ms Innes' failure to give her account to police engaged and contravened s 89 of the Evidence Act 1995 because they were directed to an inference adverse to her credibility which was also unfavourable to the appellant's defence. However, the error was not so fundamental as to make the trial hardly a trial at all, and the Court was satisfied that conviction was inevitable because the eyewitness evidence against the appellant was overwhelming. The appeal was therefore dismissed by application of the proviso.

Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Criminal Appeal Against Conviction for Malicious Wounding With Intent to Do Grievous Bodily Harm Contrary to S 33 of the Crimes Act 1900 / Appeal to the New South Wales Court of Criminal Appeal From Conviction After Jury Trial in the District Court
Outcome
Appeal dismissed
Legal Topics
['appeal Against Conviction' 'malicious Wounding With Intent to Do Grievous Bodily Harm' 'right to Silence' 'section 89 of the Evidence Act 1995' 'cross Examination of Witness' 'jury Directions' 'proviso Under S 6(1) of the Criminal Appeal Act 1912']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'malicious Wounding With Intent to Do Grievous Bodily Harm' 'right to Silence' 'section 89 of the Evidence Act 1995' 'cross Examination of Witness' 'jury Directions' 'proviso Under S 6(1) of the Criminal Appeal Act 1912']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction for Malicious Wounding With Intent to Do Grievous Bodily Harm Contrary to S 33 of the Crimes Act 1900 / Appeal to the New South Wales Court of Criminal Appeal From Conviction After Jury Trial in the District Court

Legal Issues

  1. 1 ["Whether the trial miscarried as a consequence of the Crown Prosecutor's cross-examination and address to the jury concerning Ms Innes' failure to give her account to police earlier." "Whether the trial miscarried as a consequence of the trial judge's directions to the jury concerning Ms Innes' evidence and earlier silence." "Whether s 89 of the Evidence Act 1995 applied to prohibit an inference unfavourable to the appellant from Ms Innes' failure or refusal to answer questions or respond in the course of official questioning." 'Whether leave should be granted under r 4 of the Criminal Appeal Rules 1912 and whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied.']

Ratio Decidendi

The Crown's questioning and the judge's directions concerning Ms Innes' failure to give her account to police engaged and contravened s 89 of the Evidence Act 1995 because they were directed to an inference adverse to her credibility which was also unfavourable to the appellant's defence. However, the error was not so fundamental as to make the trial hardly a trial at all, and the Court was satisfied that conviction was inevitable because the eyewitness evidence against the appellant was overwhelming. The appeal was therefore dismissed by application of the proviso.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']