NSW Caselaw
Reported Decision : 61 NSWLR 703
New South Wales Court of Criminal Appeal
CITATION : Regina v David John Elms [2004] NSWCCA 467 revised - 21/12/2004 HEARING DATE(S) : 29 October 2004 JUDGMENT DATE : 20 December 2004
JUDGMENT OF : McClellan AJA at 1; Adams J at 47; Smart AJ at 68 DECISION : Appeal allowed; sentence quashed; new trial ordered
CATCHWORDS : Previous representation by missing witness to police admissible upon tender by accused under s 65(8) Evidence Act 1995 - previous representationn either inconsistent or capable of being inconsistent with evidence of witness upon whom Crown case subnstantially depended - previous representation wrongly rejected and could have affected outcome of trial - correct construction of s 105A of Crimes Act 1900 - not necessary for circumstances of aggravation to accompany each element of the offence-sufficient if, in course of committing offence, an offender is armed Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Evidence Act 1995 Browne v Dunne [1894] 6 R 67 CASES CITED : R v Ambrosoli (2002) 55 NSWLR 603 Wilde v The Queen (1987-1988) 164 CLR 354 Williams v R (2000) 119 A Crim R 490 PARTIES : Regina v David John Elms FILE NUMBER(S) : CCA 2004/1852 CCAP COUNSEL : (A) A Francis (C) B Knoc SC SOLICITORS : (A) S E O'Connor (C) S Kavanagh
LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0287 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 2004/1852 CCAP
McCLELLAN AJA ADAMS J SMART AJ
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