R v Nale [2002] NSWCCA 31

New South Wales Court of Criminal Appeal

CITATION : R v Nale [2002] NSWCCA 31 FILE NUMBER(S) : CCA 60062/01 HEARING DATE(S) : 21 February 2002 JUDGMENT DATE : 5 March 2002

PARTIES : R v Jolane NALE JUDGMENT OF : Giles JA at 1; Greg James J at 45; Kirby J at 46

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0490 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : P Byrne SC & G Bashir - Appellant E Wilkins - Crown SOLICITORS : Ross Hill & Associates - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL LAW - grievous bodily harm inflicted - by either Crown witness or the accused - Crown witness convicted, on basis of joint criminal enterprise - fact of conviction for inflicting grievous bodily harm brought out in cross-examination - trial judge gives explanation - explanation introduced irrelevant and prejudicial material. D. CASES CITED: R v Booth (1982) 2 NSWLR 847; R v Stokes (CCA, 16 June 1988, unreported). DECISION : Orders previously made quashing conviction and ordering new trial; reasons published.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CA 60062/01 DC 99/31/0490 GILES JA Greg JAMES J KIRBY J

Tuesday 5 March 2002 R v Jolane NALE

Judgment 1 GILES JA: The appellant was tried on an indictment charging him with causing grievous bodily harm to John William Varley with intent to murder (Crimes Act 1900, s 27), and in the alternative maliciously inflicting grievous bodily harm on John William Varley with intent to do so (Crimes Act, s 33). He was found guilty on the first charge, and a verdict on the alternative charge was not required. He was sentenced to 12 years imprisonment with a non-parole period of 9 years. He appealed against both conviction and sentence. 2 It was acknowledged that all grounds of appeal were such that, if the appeal were upheld, there should be a new trial. We first heard submissions on the ground of appeal, "The learned trial judge erred in directing the jury as to the basis of Gilbert's conviction and sentence". At the conclusion of the submissions we ordered that the appeal be upheld, the conviction be quashed, and a new trial be held. We said that our reasons would be delivered at a later date. These are my reasons for the orders.