R v Bartle & Ors [2003] NSWCCA 329

New South Wales Court of Criminal Appeal

CITATION : R v Bartle & Ors [2003] NSWCCA 329 HEARING DATE(S) : 17 February 2003, 18 February 2003, 19 February 2003, 20 February 2003, 21 February 2003 JUDGMENT DATE : 3 December 2003

JUDGMENT OF : Mason P at 1; Barr J at 1; Smart AJ at 392 DECISION : Garry William Bartle: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Maximiliano Diez: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Peter Darryl Fox: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.; Sir Thomas Graham Fry: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Thomas McCaffrey: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered; Robert Angelo Roberti: The appeal against conviction is dismissed. Leave is granted to appeal against sentence and the appeal is dismissed. The Crown appeal is dismissed; Hamish Edmond Thompson: The appeal against conviction is upheld, the conviction is quashed and a new trial is ordered.

CATCHWORDS : criminal law - joint trial - whether joint trial miscarried - whether outburst by one joint accused that all accused had criminal records and had been in gaol caused trial to miscarry - whether directions of trial judge adequate to remove danger of unfair trial - whether raising of good character was intentional - whether Crown entitled to respond by adducing evidence of bad character - whether miscarriage resulted - whether Crown address diverted jury from need to try cases separately - whether directions sufficient to secure separate trial of cases - whether trial judge's refusal to supply jury with transcript of counsel's closing address justified - whether miscarriage resulted - whether evidence of admissions unlawfully obtained - whether trial judge's discretion to admit it miscarried - whether evidence wrongly admitted - whether miscarriage resulted from admission of evidence that a co-offender had pleaded guilty and undertaken to assist the Crown - whether trial judge adequately put defence to jury - criminal law - sentencing - co-offender sentenced by different judge on different facts - whether resulting sentence "erroneous" - whether a justifiable sense of grievance resulted - co-offender received a discounted sentence following an undertaking to give evidence but Crown did not call him to give evidence - whether justifiable sense of grievance resulted. Customs Act 1901 (Cth) s.233B(1) Evidence Act 1995 ss. 13, 55, 56, 76, 78, 79, 85, 90, 97, 98, 102, 104, 110, 112, 119, 128, 131, 135,137, 138, 192 LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) ss. 6, 50A Crimes Act 1914 (Cth) Pt 1C (ss. 23A - 23W), ss. 16, 16A, 16G, 21E, 23C, 23D, 23E, 23Q Crimes Act 1900 (NSW) s.352 Jury Act 1977 s. 55C Bales v Parmeter (1935) 35 SR (NSW) 182 Crofts v The Queen (1996) 186 CLR 427 Edwards v The Queen (1993) 178 CLR 193 Festa v The Queen [2001] HCA 72 Gabriel v The Queen (1997) 76 FCR 279 Gilbert v The Queen [2000] HCA 15 Harriman v The Queen (1989) 167 CLR 590 House v The King (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 Knight v The Queen (1992) 175 CLR 495 Krulewitch v United States 336 US 440 (1949) La Fontaine v The Queen (1976) 136 CLR 62 Lowe v The Queen (1984) 154 CLR 606 Mraz v The Queen (1955) 93 CLR 493 Postiglione v The Queen (1997) 189 CLR 295 R v Capper (1993) 79 A Crim R 64 R v Dalley [2002] NSWCCA 284 R v Dungay (2001) 126 A Crim R 216 R v Everitt [1921] VLR 245 R v Fuller (1994) 34 NSWLR 233 R v Gadbury (1838) 8 Car and P 676 R v Gallagher (1991) 23 NSWLR 220 CASES CITED : R v Glasby [2000] NSWCCA 83 R v Guirgis NSW Court of Criminal Appeal, 12 October 1998, unreported R v Hodges (1997) 95 A Crim R 85 R v Ismunander & Siregar [2002] NSWCCA 477 R v Jones (1909) 3 Cr App R 67 at 69 R v Mandagi [2002] NSWCCA 57 R v Meggett 107 A Crim R 257 R v Middis, Supreme Court of New South Wales, Hunt J, 27 March 1991 R v Phung and Huynh [2001] NSWSC 115 R v Rogerson (1992) 65 A Crim R 530 R v Rondo (2001) 126 A Crim R 562 R v Taousanis [1999] NSWSC 107 R v Tillot (1991) 53 A Crim R 46 R v Tisalandis [1982] 2 NSWLR 430 R v White [1969] VR 203 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Apostilides (1984) 154 CLR 563 The Queen v Chin (1985) 157 CLR 671 The Queen v Glennon (1992) 173 CLR 592 Veen v The Queen (No 2) (1988) 164 CLR 465 Wilde v The Queen (1988) 164 CLR 365 Williams v The Queen (1986) 161 CLR 278 Zoneff v The Queen (2000) 200 CLR 234 Regina Garry William Bartle Maximiliano Diez PARTIES : Peter Darryl Fox Sir Thomas Graham Fry Thomas McCaffrey Robert Angelo Roberti Hamish Edmond Thompson FILE NUMBER(S) : CCA 60823/01 & 60816/01; 60723/01 & 60817/01; 60784/01 & 60818/01; 60729/01 & 60819/01; 60735/01 & 60819/01; 60735/01 & 60820/01; 60737/01 & 60821/01; 60814/01 & 60822/01 Bartle: C M Simpson Diez: S J Odgers SC/ D J Brezniak Fox: H K Dhanji/ M Buscombe COUNSEL : Fry: B T Stratton QC McCaffrey: J Dailly SC Roberti: M G Crowley Thompson: G Ikners Crown: M J King/ C Salsone Bartle: Galloways Diez: Freemans Fox: Chalmers Marx SOLICITORS : Fry: Ross Hill & Associates McCaffrey: James A Hall Roberti: Ford Gaitanis Thompson: Hardinlaw Crown: S E O'Connor