Wong v R [2009] NSWCCA 101

New South Wales Court of Criminal Appeal

CITATION: Wong v R [2009] NSWCCA 101

HEARING DATE(S): 16 December 2008

JUDGMENT DATE: 15 April 2009

JUDGMENT OF: Campbell JA at 1; Grove J at 151; Howie J at 152

DECISION: 1. Quash the conviction of the appellant on the charge of driving in a manner dangerous causing death. 2. There be a new trial.

CATCHWORDS: CRIMINAL LAW – evidence – admission of new evidence on appeal – whether or not it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty when new evidence contracted the testimony of one eyewitness – whether contradictory witness testimony raises reasonable doubt that the accused was not guilty – whether new evidence is likely to lead to acquittal or a significant possibility of acquittal - CRIMINAL LAW – trial – direction to the jury – failure by trial judge to put the defence case to the jury – whether trial judge is required to put case to the jury in light of section 161 Criminal Procedure Act 1986 – distinction between obligation to summarise evidence and obligation to put the defence case to the jury - CRIMINAL LAW – trial – Rule 4 Criminal Appeal Rules – whether leave should be granted by the Court when no objection to the trial judge's summing up was taken at trial – whether a failure to put the defence case to the jury is such a departure from the essential requirements of the law that it goes to the root of the proceedings - CRIMINAL LAW – appeal and new trial – whether an order for retrial should be made when the accused has served approximately one quarter of the total head sentence, and less than half the non-parole period

Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Appeal Rules Criminal Procedure Act 1986 Criminal Procedure Legislation (Amendment) Act 1990