Regina v Fowler [2000] NSWCCA 352

New South Wales Court of Criminal Appeal

CITATION : Regina v Fowler [2000] NSWCCA 352 FILE NUMBER(S) : CCA 60679/98 HEARING DATE(S) : 28 August 2000 JUDGMENT DATE : 7 September 2000

PARTIES : REGINA (Respondent) Jason Anthony FOWLER (Appellant in person) JUDGMENT OF : Studdert J at 1; Simpson J at 2; Dowd J at 75

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0377; 97/31/0484 LOWER COURT JUDICIAL Shillington DCJ OFFICER :

COUNSEL : W G Dawe (Crown/Respondent) SOLICITORS : S E O'Connor (Crown/Respondent)

LEGISLATION CITED : Evidence Act 1995 Crimes Act 1900 Black v R (1993) 179 CLR 44 CASES CITED: R v M (1994) 181 CLR 487 Fleming v R (1998) ALR 379 DECISION : Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed.

IN THE COURT OF

CRIMINAL APPEAL 60679/98 STUDDERT J SIMPSON J DOWD J

7 September 2000

REGINA v Jason Anthony FOWLER

JUDGMENT

1 STUDDERT J: I agree with Simpson J SIMPSON J : 2 On 3 June 1998 following a trial by jury in the District Court the appellant was convicted of a single count that, on 8 August 1997, whilst armed, and with intent to rob, he assaulted and wounded Mr Peter John Kidd. He appeals against that conviction. He seeks leave to appeal against the sentence subsequently imposed upon him by Shillington DCJ in relation to that offence, and against another sentence imposed in relation to a charge of escaping from lawful custody, to which charge he pleaded guilty. 3 The Crown case on the principal charge was that, at about 2.00 am on 8 August 1997, the appellant violently broke into a residence attached to a newsagency in Boollaroo and demanded money of the occupant, Mr Kidd. The appellant was armed with a large knife and was wearing a balaclava that concealed his face. Mr Kidd attempted to close the bedroom door, but the appellant forced it open, in the process cutting Mr Kidd's hand. The appellant then kicked the door, which caved in on Mr Kidd. Mr Kidd seized an aluminium ladder that was fortuitously nearby, and used it to hit the appellant on the head. Mr Kidd sustained cuts to his left cheek, left hand, and bruising to his feet. 4 The trial which commenced on 1 June 1998 was the appellant's third trial on this charge. The first, which began before Job DCJ in July 1998, aborted after an inadvertent remark by a witness. At the end of the second trial, which began immediately after the discharge of the jury in the first, the jury was unable to agree. 5 The evidence in the Crown case can be divided into three principal categories: