NSW Caselaw
Reported Decision : (2002-2003) 56 NSWLR 454
New South Wales Court of Criminal Appeal
CITATION : R. v. WHALEN, Andrew John and WILLER, Brett J. [2003] NSWCCA 59 HEARING DATE(S) : 4 March 2003 JUDGMENT DATE : 13 March 2003
JUDGMENT OF : Hodgson JA at 1; Dowd J at 100; Barr J at 101 DECISION : 1. With respect to each appellant, verdict of guilty on count 2 substituted for the verdict of guilty on counts 1 and 3, and for avoidance of uncertainty the verdict of guilty on counts 1 and 3 quashed and a verdict of acquittal entered on those counts. 2. Appellant Whalen sentenced to imprisonment for two years three months commencing 1 March 2002 and expiring 31 May 2004, with a non-parole period of eighteen months expiring 31 August 2003, and the Court directs his release on parole on 31 August 2003. 3. Appellant Willer sentenced to imprisonment for one year nine months commencing 1 March 2002 and expiring 30 November 2003, with a non-parole period of twelve months expiring 28 February 2003, and the Court directs his release on parole forthwith.
CATCHWORDS : CRIMINAL LAW - APPEAL - Identity of inanimate object - Whether s.165 direction required - Need to have defence case fairly before jury - Whether alternative count appropriate - Circumstances in which appeal court can substitute for the verdict found by the jury a verdict of guilty for another offence. Criminal Appeal Act 1912 ss.6, 7 LEGISLATION CITED : Criminal Procedure Act 1986, s.99 Evidence Act 1995 ss.54, 165 Checconi (1988) 34 ACrimR 160 Crupi (1995) 86 ACrimR 299 Hamzy (1994) 74 ACrimR 341 Locchi (1991) NSWLR 309 CASES CITED : R v. Birks (1990) 19 NSWLR 677 R v. Clout (1995) 41 NSWLR 312 R v. Sultana (1992) 74 ACrimR 27 Shepherd v. The Queen (1990) 170 CLR 573 Theos (1996) 89 ACrimR 486 Regina - respondent PARTIES : Andrew John Whalen - appellant Brett J. Willer - appellant FILE NUMBER(S) : CCA 60270/02; 60271/02 Mr. M.C. Ramage QC for Mr. Whalen COUNSEL : Mr. P. Hamill for Mr. Willer Mr. D.M. Howard for Crown/respondent SOLICITORS : Pickering Priestley for appellants S.E. O'Connor for Crown/respondent
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