BROWN, BARWICK, BROWN v R [2006] NSWCCA 69

New South Wales Court of Criminal Appeal

CITATION: BROWN, BARWICK, BROWN v R [2006] NSWCCA 69

HEARING DATE(S): 31 January 2006

JUDGMENT DATE: 22 March 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 5; Rothman J at 58

DECISION: Appeal allowed; Quash the conviction the subject of the appeal and the sentence imposed by Judge English; Order that there be a new trial

Regina PARTIES: Gregory Brian Brown Kevin James Barwick Neville John Brown

FILE NUMBER(S): CCA 2005/1574

Crown: V Lydiard COUNSEL: B Brown: C Smith K Barwick: J Stratton SC N Brown: A Bellanto QC

Crown: S Kavanagh SOLICITORS: B Brown: North & Bedgery K Barwick: S O'Connor N Brown: Patricia White & Associates

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/61/0246

LOWER COURT JUDICIAL OFFICER: English DCJ

- 22 - IN THE COURT OF CRIMINAL APPEAL 2005/1365 2005/1574 2005/1572

McCLELLAN CJ AT CL HULME J ROTHMAN J

Wednesday, 22 March 2006 Neville John BROWN v R Kevin James BARWICK v R Gregory Brian BROWN v R Judgment 1 McCLELLAN CJ AT CL I have read the reasons for judgment of Hulme J in draft and agree with them. 2 As there must be a new trial the question will be raised again as to whether Mr Gray is relevantly "available to give evidence." This will require consideration to be given to his competence having regard to the tests provided by s13 of the Evidence Act in light of any evidence as to Mr Gray's mental capacity at the time of that trial. 3 The conclusion of this Court on that issue is based upon the evidence given at the trial but does not determine the conclusion which may be appropriate at the new trial. 4 I agree with the orders proposed by Hulme J. 5 HULME J: On 27 April 2004 each of the above-named Appellants pleaded not guilty to a charge that:- "He on or about 27 June 2003 at Wellington… did maliciously inflict grievous bodily harm upon George Gray with intent to do grievous bodily harm to him" 6 On 10 May 2004 the jury found each of Messrs Brown guilty as charged. Mr Barwick was convicted of the statutory alternative of maliciously inflict grievous bodily harm. 7 On 11 February 2005 Judge English sentenced Neville Brown to imprisonment for a non-parole period of 9 years and 10 months and an overall term of imprisonment of 12 years both periods commencing on 3 January 2004. Her Honour imposed a similar sentence on Gregory Brown though commencing on 1 July 2003 and sentenced Kevin Barwick to imprisonment for a non-parole period of 1 year and 9 months and an overall term of 3 years and 6 months both of these periods commencing on 10 May 2004.