Regina v Baker [2001] NSWCCA 151

New South Wales Court of Criminal Appeal

CITATION : Regina v Baker [2001] NSWCCA 151 FILE NUMBER(S) : CCA 60192/00 HEARING DATE(S) : 20/04/01 JUDGMENT DATE : 20 April 2001

PARTIES : Regina v Alan John Baker JUDGMENT OF : Handley JA at 1 & 36; Ipp AJA at 2; Greg James J at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/71/0052 LOWER COURT JUDICIAL Shillington DCJ OFFICER :

COUNSEL : J S Stratton QC (Appellant) W L Robinson QC (Crown) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - Appeal and a new trial - unlawful violence - directions to jury - accused's failure to give evidence - silence of accused not to be treated as evidence of guilt - there are many unknown reasons why accused may choose not to testify - accomplice direction - where accomplice testifies in favour of defendant - trial judge's directions inappropriate - appeal upheld, new trial ordered. LEGISLATION CITED : Evidence Act 1995 CASES CITED: R v OGD (1997) 45 NSWLR 744 Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 DECISION : 1. Appeal upheld; 2. Set aside verdict; 3. Order a new trial.

IN THE COURT OF CRIMINAL APPEAL

60192/00 HANDLEY JA IPP AJA GREG JAMES J

Friday 20 April 2001 REGINA v Alan John BAKER

JUDGMENT

1 HANDLEY JA: I will pass to Mr Justice Ipp to give the first judgment. 2 IPP AJA: The appellant was charged with having, on 19 June 1996 at Cootamundra, threatened unlawful violence to the complainants, Rebecca Hoffman, Gregory Kendrick, Jason Elliot and Jemina Buggy by conduct that would cause a person of reasonable firmness present at the scene to fear for their personal safety. He was also charged with having at the same date and place maliciously damaged a motor vehicle the property of Jemina Buggy. He pleaded not guilty to both charges. He was found guilty by a jury of the first charge and acquitted of the second charge and now appeals against the conviction. 3 The appellant, in effect, relies on two grounds of appeal. The first is that the trial judge, Shillington DCJ, failed appropriately to direct the jury about his failure to give evidence. The second complains that his Honour erred in giving directions to the jury that the evidence of a witness, one Peter Young, might be unreliable because he was an accomplice; the appellant contends that his Honour should have discharged the jury in consequence of the directions that he gave. 4 With regard to the first ground, the direction complained of is the following: "Well now, members of the jury, I must also tell you that the accused in this trial has himself failed to give evidence. He was entitled to give evidence and to give his version of the facts. On the other hand, I remind you that the onus lies on the Crown to prove its case beyond reasonable doubt. The accused is perfectly entitled to say to a jury, through his counsel as occurred here, you would not be satisfied for this or for that reason of the guilt of the accused, you would not be satisfied beyond reasonable doubt of his guilt."