REGINA v ANDERSON [2002] NSWCCA 141

New South Wales Court of Criminal Appeal

CITATION : REGINA v ANDERSON [2002] NSWCCA 141 FILE NUMBER(S) : CCA 60653/00 HEARING DATE(S) : 11 April 2002 JUDGMENT DATE : 24 April 2002

PARTIES : REGINA v Michael Colin ANDERSON JUDGMENT OF : Mason P at 1; Dowd J at 33; Greg James J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/71/0011 LOWER COURT JUDICIAL Woods DCJ OFFICER :

COUNSEL : P M Strickland - Appellant R A Hulme - Crown SOLICITORS : D J Humphreys - Appellant S E O'Connor - Crown CATCHWORDS : Appeal on conviction - identification - whether trial miscarried due to cross-examination of the appellant in relation to his failure to inform the police about a person he alleged was the assailant - right to silence - Evidence Act 1995 s 89 - whether appellant ought to have answered questions during course of official questioning - whether prosecutor ought to have implied defence was fabricated because it was raised late - whether directions by judge were adequate. (ND) LEGISLATION CITED : Evidence Act 1995, s 89 CASES CITED: Petty v The Queen (1991) 173 CLR 95 DECISION : Appeal allowed - see par 32

IN THE COURT OF CRIMINAL APPEAL CCA 60653/2000

MASON P DOWD J GREG JAMES J

Wednesday 24 April 2002

REGINA v Michael Colin ANDERSON Judgment 1 MASON P: The appellant was tried in the District Court before Judge Woods QC and a jury. He was convicted on two counts, namely break, enter and steal in circumstances of aggravation and indecent assault. On the first count he was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing from 14 February 1999 and expiring on 12 February 2007. On the second count the sentence was a term of 3 years commencing from 14 February 1999 and expiring on 13 February 2002. 2 In reality the only issue was one of identification. 3 The Crown case and case for the appellant at trial are summarised as follows in the Crown submissions: