Citation: Regina v Heron [2000] NSWCCA 312
Court: New South Wales Court of Criminal Appeal
Date: 17 August 2000
Judge(s): Priestley JA; Foster AJA; Simpson J
Background
The appellant was convicted of murder following a jury trial before Sully J in the Supreme Court. The conviction arose from a fight at a hotel pool room in Darlinghurst, during which the deceased suffered a penetrating wound to the chest from a sharp object and died shortly afterwards. The prosecution case was that the appellant stabbed the deceased with a knife; the appellant denied carrying or using a knife and maintained the wound could have been caused accidentally by a shard of broken glass.
The trial ran for twenty-three sitting days. Several witnesses gave evidence of seeing a knife in the appellant's hand, and some reported hearing bystanders call out that he had a knife. The appellant gave evidence in his own defence. On 9 July 1998 the jury returned a guilty verdict, and Sully J subsequently sentenced the appellant to penal servitude with a minimum term of fourteen years and an additional term of four years.
The appellant appealed against both conviction and sentence. He raised seven grounds concerning alleged procedural errors during the trial, plus the ground that the jury's verdict was unsafe and unsatisfactory.
Legal Issues
- Whether the trial judge erred in refusing to discharge the jury after referring to the accused as "the prisoner" who was transported to court in "appropriate transport," potentially signalling prior incarceration
- Whether the trial judge erred in speaking to the jury in the appellant's absence
- Whether certain evidence was wrongly admitted
- Whether the trial judge made a prejudicial comment during the proceedings
- Whether the trial judge unduly expressed his own opinions to the jury in a manner that overrode the jury's role as the sole finders of fact
- Whether the jury's verdict was unsafe and unsatisfactory
- Whether the sentence of fourteen years minimum plus four years additional term was excessive or outside the appropriate range
Decision
The Court dismissed all seven procedural grounds of appeal. On the jury discharge question, the Court accepted that the trial judge's reference to the accused as "the prisoner" who arrived by "appropriate transport" could arguably have conveyed to jurors that the accused was serving a prior sentence. However, having regard to the directions the trial judge gave the jury following that remark, and considering the episode in the context of a lengthy twenty-three-day trial, the Court concluded it was relatively unimportant and had not caused a miscarriage of justice. Foster AJA noted initial concern about this ground but was ultimately satisfied the directions were sufficient.
On the ground that the trial judge had unduly made his own opinions known, the Court applied the principles in R v Zorad and R v D, finding that the judge had given appropriate instructions, on a sufficient number of occasions, reminding the jury that they were the sole deciders of fact. There was no indication the judge had attempted to use his authority to overbear the jury into accepting his views.
On the unsafe and unsatisfactory ground, the Court found no basis for doubt about the appellant's guilt and identified no significant possibility that an innocent person had been convicted. The Court acknowledged inevitable inconsistencies among the numerous witnesses but found these did not undermine the overall reliability of the verdict.
On sentence, the Court granted leave to appeal but dismissed the appeal. It found no error in the sentencing judge's approach or in the result. Priestley JA acknowledged the sentence was heavy but concluded it was appropriate for a very serious crime and not outside the permissible range.
Orders Made
- Appeal against conviction dismissed.
- Application for leave to appeal against sentence granted; appeal against sentence dismissed.
Key Takeaways
- A trial judge's inadvertent reference to an accused as "the prisoner," with implications of prior custody, will not necessarily require discharge of the jury where prompt and adequate directions are given, and the episode is minor relative to the overall length of the trial.
- Under the principles confirmed in R v Zorad and R v D, a trial judge who expresses opinions during proceedings will not be found to have erred where the jury has been told, on a sufficient number of occasions, that they alone are the finders of fact and where there is no sign of the judge attempting to overbear the jury's independent judgment.
- An unsafe and unsatisfactory verdict ground requires the appellate court to identify actual doubt about the appellant's guilt or a significant possibility that an innocent person was convicted; inconsistencies among multiple witnesses, without more, do not establish that standard.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a heavy sentence for a violent murder will not be disturbed on appeal where the sentencing judge demonstrably considered all relevant factors and arrived at a conclusion within the appropriate range.
- No error was established in procedural complaints including alleged improper communications with the jury, wrongful admission of evidence, and prejudicial comments, all of which were assessed against the trial record and found not to have affected the fairness of the proceedings.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- Crofts v The Queen (1996) 186 CLR 427
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- R v Gilbert Adam [1999] NSWCCA 197
- R v Richard Adam (1999) 106 A Crim R 510
- R v D (1997) 68 SASR 571
- R v Machin (1996) 68 SASR 526
- R v Pavlukoff (1953) 106 CCC
- R v Webb (1997) 68 SASR 545
- R v Zorad (1990) 19 NSWLR 91