1. Decision [if reserved give your own brief assessment of the just outcome].

Not guilty. The issue was whether the accused did the GBH alleged and that doing was unlawful. It was not a question of whether the complaint suffered GBH. But what matters was the accused’s doing. In absence of jury, defence submitted defences/excuses such as trespass, self-defence and accident. His Honour did not see any grounds for self-defence or trespass, but allowed the excuse of accident to be left to the jury.

2. Any issues of Competence or Compellability.

The general rule is that everybody is both a competent (s9 QEA) and compellable witness (Hoskyn)[1] which was sworn under oath when they understood that the giving evidence was a serious matter and were under obligation to tell truth, over and above ordinary duty (s9B(2) QEA). The witnesses were all adults who either knew the accused or had lived or visited the house where the alleged offence occurred. Wardle, the accused, was competent but not compellable in his defence (s8(1) QEA), however he voluntarily wanted to testify himself. The Crown was not competent or compellable to testify (Payne).[2] This was the most interesting part in trial was when the Crown cross-examined the accused Wardle on his credit worthiness to testify himself in court. The tactic behind was to prove prior inconsistent statement to what Wardle has testified himself in the current trial.

3. Relevant Exclusionary Rules [e.g. Hearsay, Character or Opinion].

Exclusionary evidence is evidence, which, by law, is not allowed in a criminal prosecution even though there may be no claims against its authenticity (Murphy).[3] Opinion evidence in general is not admissible (s76 CEA). Witnesses must give a plain account of the actual perception (through their five senses) that is devoid of evaluation, inference, interpretation, belief or opinion. However expert witness, being experts in a particular field, may express opinions upon relevant matters within the field of expertise. This is an exception to the general rule that a witness may speak only as to facts (s79 of CEA). The condition for admissibility of expert opinion evidence is that the evidence given must be within the expert’s field of specialised knowledge. There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. The opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached (Makita).[4]

In this trial, Doctor Lyne, as an orthopaedic surgeon, who has specialised his training in hip and knee replacement since 1966, provided his expert opinion about the incident. In his opinion, if a person is being pushed from the edge of a distance between half to two meters that would certainly cause GBH to the victim. If someone is over weight (the victim weighted around 87-88kgs), then it is more likely to fracture then falling from the height. Significant force such as falling from the edge of the hill could also cause GBH. This evidence has been ruled in as juries and judge would require expert assistance to draw correct inferences of whether the accused is guilty of the GBH offence (Clark v Ryan).[5]

Character evidence is admissible in a criminal trial if offered by a defendant as circumstantial evidence, through reputation or opinion evidence as long as the character evidence the defendant seek was relevant to this trial (s 110 CEA; Sherrard v Jacob[6]). Despite the character evidence was not directly connected to this case at hand but by Mr Jeffery Wayne’s testimony, have been friends with the defence for 15 years, doing all the family activities together, has proven accused’s positive character.

4. Judicial discretion.

The power of a judge is to exercise a personal notion of fairness, guided by principles and rules of law. An exercise of judicial discretion does not involve the application of a strict rule of law but involved the weighing of various competing factors and making a determination according to what was fair, just or otherwise be part of the admissible evidence (Hasler).[7]

In this trial, the issue here was whether Judge Farr should exercise his judicial discretion to exclude some photographs that was not presented to the police station but was relevant and admissible. As the police officer has not seen those photos and therefore could not answer any questions regarding to those photos. The photographic evidence was ultimately excluded by judicial discretion.

 


[1] R v Hoskyn [1979] AC 474.

[2] Payne v Smithers [1825] NSWKR.

[3]  Murphy v The Queen (1989) 167 CLR 94.

[4] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

[5] Clark v Ryan (1960) 130 CLR 486.

[6] Sherrard v Jacob [1965] NI 151.

[7] Hasler [1987] 1 Qd R 239.

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