R v Hickey [2002] NSWCCA 474

R v Hickey [2002] NSWCCA 474

The combination of the delay in answering the jury's questions, the failure to answer the clarified question seeking an explanation of joint criminal enterprise, and the return of verdicts shortly after jurors were asked to state why they did not want to return the next day produced a miscarriage of justice. In light of the jury's questions and evidence raising a real possibility that the appellant may have been the driver rather than one of the robbers who entered the newsagency, the original joint criminal enterprise directions were no longer sufficient. Because the jury must nevertheless have been satisfied of facts proving two offences of robbery, the Court substituted verdicts and...

Jurisdiction
Australia
Judgment Date
29 November 2002
Procedural Posture
Criminal Appeal / Appeal Against Conviction; Substituted Verdict and Re Sentencing
Outcome
Convictions quashed; substituted convictions entered for two offences of robbery; appellant re-sentenced.
Legal Topics
['jury Question' 'joint Criminal Enterprise' 'criminal Appeals' 'substituted Verdict' 're Sentencing' 'robbery']
['criminal Law' 'criminal Procedure' 'sentencing'] ['jury Question' 'joint Criminal Enterprise' 'criminal Appeals' 'substituted Verdict' 're Sentencing' 'robbery']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction; Substituted Verdict and Re Sentencing

Legal Issues

  1. 1 ["Whether the delay in responding to the jury's question and the failure to answer it caused a miscarriage of justice." 'Whether the trial miscarried because the judge failed to direct the jury about common purpose and failed to deal with the evidence on the issue.' 'Whether the Court should substitute verdicts of guilty of robbery simpliciter under s 7(2) of the Criminal Appeal Act.' 'What sentence should be imposed for the substituted offences of robbery.']

Ratio Decidendi

The combination of the delay in answering the jury's questions, the failure to answer the clarified question seeking an explanation of joint criminal enterprise, and the return of verdicts shortly after jurors were asked to state why they did not want to return the next day produced a miscarriage of justice. In light of the jury's questions and evidence raising a real possibility that the appellant may have been the driver rather than one of the robbers who entered the newsagency, the original joint criminal enterprise directions were no longer sufficient. Because the jury must nevertheless have been satisfied of facts proving two offences of robbery, the Court substituted verdicts and...

Court Disposition

Convictions quashed; substituted convictions entered for two offences of robbery; appellant re-sentenced.

Orders

  • ['The convictions in the Court below are quashed.' 'Pursuant to s 7(2) of the Criminal Appeal Act the Court substitutes for the verdicts, verdicts of guilty of, and enters convictions for, two offences under s 94 of the Crimes Act 1900.' 'The Court imposes a sentence of three years commencing today and expiring on...