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34
Court of Criminal Appeal 14 April 1999

R v Fernando & Anor

[1999] NSWCCA 66

Sexual offencesAssault & violenceHomicide
CRIMINAL LAW MURDER CONFESSIONS AND ADMISSIONS VOLUNTARINESS HOSTILE WITNESS UNRELIABILITY OF WITNESS

Citation: Fernando & Anor v R [1999] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 14 April 1999
Judge(s): Newman J, Studdert J, James J

Background

Two cousins, referred to here as the first appellant and the second appellant, were jointly tried and convicted of the murder and sexual assault of a young nurse who was abducted from her workplace at a regional NSW hospital in the early hours of 9 December 1994. The victim's body was found in a paddock nearby. She had sustained catastrophic neck wounds, and the medical evidence indicated either wound alone would have caused death.

The Crown case against the first appellant rested on circumstantial evidence, including witness accounts placing him in possession of a machete near the hospital shortly before the killing, and evidence of movements toward the hospital in the company of the second appellant. The case against the second appellant included direct evidence of sexual assault and similar witness testimony about his presence and conduct that night.

Both appellants were convicted by a jury and sentenced to penal servitude for the term of their natural lives for the murder. Each received ten years' penal servitude for the accompanying sexual offences. Both appealed against their convictions and sought leave to appeal against their sentences.

  • Whether admissions and confessional material were properly admitted, including questions of voluntariness under the Evidence Act 1995
  • Whether the trial judge correctly handled a hostile witness (Michael Jackson) and the use of prior inconsistent statements as evidence
  • Whether hearsay evidence was properly admitted or excluded under the Evidence Act 1995, including the operation of ss 59, 60, and related provisions
  • Whether the Crown's failure to call a particular witness gave rise to an adverse inference
  • Whether the Crown was properly permitted to reopen its case
  • Whether the trial judge's directions on common purpose were adequate
  • Whether the trial judge erred in commenting on the appellants' failure to give evidence
  • Whether the appellants should have been tried separately, and whether cross-examination by the co-accused caused unfairness
  • Whether the verdicts were unsafe and unsatisfactory
  • Whether life sentences were justified as representing the worst category of murder under s 19A(2) of the Crimes Act 1900 and s 13(c) of the Sentencing Act 1989

Decision

The Court dismissed both conviction appeals. On the evidentiary grounds, the Court found no error in the way the trial judge admitted or excluded the contested material, including the handling of the hostile witness and the use of his prior police statement. The provisions of the Evidence Act 1995 were correctly applied. No unfairness arose from the Crown's failure to call a particular witness, and the Crown was properly permitted to reopen its case in the circumstances.

On the directions issues, the Court found the jury was adequately directed on common purpose and that no appealable error arose from the trial judge's comments about the appellants' election not to give evidence. The Court also rejected the submissions that the joint trial was unfair or that cross-examination by a co-accused had caused a miscarriage of justice. The verdicts were not unsafe or unsatisfactory on the evidence presented.

On sentencing, the Court upheld the life sentences imposed on both appellants. The sentencing judge had considered the appellants' ages, their Aboriginal background (with specific reference to the principles in R v Fernando (1992)), prospects of rehabilitation, and prior criminal histories. Despite this, his Honour concluded the objective seriousness of the crime was so extreme, and the level of culpability so high, that a life sentence was the only penalty adequate to meet the community's interest in retribution and punishment.

The Court acknowledged the submission that other aggravated murder cases had attracted determinate sentences, but declined to treat that comparison as determinative. Consistent with the High Court's reasoning in Veen v The Queen (No 2), the Court noted it is always possible to imagine a worse case, and that classifying an offence as a "worst case" requires identifying particular features of very great heinousness. The Court found no mitigating objective features and upheld the finding that this case fell within that category.

Orders Made

  • Appeal against conviction by the first appellant: dismissed
  • Leave to appeal against sentence by the first appellant: granted; appeal dismissed
  • Appeal against conviction by the second appellant: dismissed
  • Leave to appeal against sentence by the second appellant: granted; appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a life sentence under s 19A(2) of the Crimes Act 1900 may be appropriate even where a sentencing court has given genuine weight to subjective factors including youth, Aboriginal background, and prospects of rehabilitation, provided the objective seriousness of the offending is sufficiently extreme.

  • In dismissing both conviction appeals, the Court found that the trial judge's management of a hostile witness, including cross-examination on prior police statements and the evidentiary use of those statements under the Evidence Act 1995, raised no error warranting a retrial.

  • Classifying an offence as a "worst case" for sentencing purposes does not require it to be literally the most serious conceivable; it requires the sentencing judge to identify particular features of very great heinousness, consistent with Veen v The Queen (No 2).

  • A joint trial does not become unfair merely because co-accused cross-examine each other or run defences that are inconsistent; the court reaffirmed that severance is not required in the absence of actual demonstrated prejudice amounting to a miscarriage of justice.

  • No adverse inference necessarily arises from the Crown's failure to call a particular witness; the circumstances of the omission must be assessed in context, and no such inference was warranted on the facts here.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 20, 38, 59, 60, 76, 78, 84, 85, 90, 104, 135, 137, 138, 165
- Crimes Act 1900 (NSW), s 19A(2)
- Sentencing Act 1989 (NSW), s 13(c)

Cases:
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- R v Fernando (1992) 76 A Crim R 58
- Weissensteiner v The Queen (1993) 178 CLR 217
- Lee v The Queen 72 ALJR 1484
- R v Swaffield (1997-98) 192 CLR 159
- Foster v The Queen 67 ALJR 550
- Shepherd v The Queen (1990) 170 CLR 573
- De Jesus v The Queen (1986) 68 ALR 1
- B v The Queen (1992) 175 CLR 599
- Webb & Hay v The Queen (1993-94) 181 CLR 41
- R v Tangye (1997) 92 A Crim R 545
- R v Beattie (1996) 40 NSWLR 155
- R v Dellapatrona & Duffield (1993) 31 NSWLR 123
- R v Clout (1995) 41 NSWLR 312
- R v Plevac (1995) 84 A Crim R 570
- Murdoch v Taylor [1965] AC 574
- R v Assim (1966) 2 QB 249
- R v Baker (unreported, Court of Criminal Appeal, 29 September 1995)
- R v Baartman (unreported, Court of Criminal Appeal, 6 October 1994)
- Various other unreported Court of Criminal Appeal decisions