Citation: Regina v Fowler [2000] NSWCCA 352
Court: NSW Court of Criminal Appeal
Date: 7 September 2000
Judge(s): Studdert J, Simpson J, Dowd J
Background
The appellant was convicted by a District Court jury of a single count of assault and wounding while armed with intent to rob, arising from a violent break-in at a residential newsagency in the early hours of 8 August 1997. The intruder, wearing a balaclava and carrying a large knife, confronted the occupant in his bedroom and cut his hand when forcing open the door. The occupant struck back with an aluminium ladder and sustained cuts to his cheek and hand, as well as bruising.
The trial before Shillington DCJ was the appellant's third on this charge. The first trial was aborted after an inadvertent remark by a witness, and the second resulted in a hung jury. The Crown's case rested on identification evidence, circumstantial evidence (including the appellant's acquaintance with the occupant's daughter and an injury to his head consistent with a blow from a ladder), and alleged admissions made to his mother and sister. The appellant gave sworn evidence and relied on alibi evidence.
The appellant also pleaded guilty to escaping from custody, having fled the courtroom the moment the jury returned its guilty verdict. He was arrested in Adelaide approximately eight weeks later. He appeared in the Court of Criminal Appeal without legal representation and prepared his own grounds of appeal.
Legal Issues
- Whether the guilty verdict was unreasonable or could not be supported by the evidence
- Whether the trial judge demonstrated bias against the appellant, including through an unbalanced summing-up
- Whether certain evidence should have been excluded under s 138 of the Evidence Act 1995
- Whether a record of interview should have been edited to remove references to the appellant's prior criminal history
- Whether pre-trial media publicity from an earlier trial unfairly affected the proceedings
- Whether directions on identification were adequate
- Whether a direction given after the jury indicated it was deadlocked was proper
- Whether a juror's acquaintance with a police witness was a vitiating irregularity
- Whether the sentences imposed, individually or cumulatively, were manifestly excessive
Decision
Simpson J (with whom Studdert J and Dowd J agreed) dismissed the appeal against conviction after examining each ground raised by the self-represented appellant. On the bias allegation, the Court found that Judge Shillington's summing-up was fair and impartial. The fact that he reached a different evidentiary ruling from a judge in a prior trial did not establish bias, particularly since the evidence before each judge may have differed and different arguments may have been advanced.
On the reasonableness of the verdict, the Court rejected the submission that no reasonable jury could have returned a guilty verdict. The evidence against the appellant, including the admissions to family members and the circumstantial material, was capable of supporting the conviction. The remaining subsidiary grounds, including those relating to the record of interview, media publicity, identification directions, the deadlocked jury direction, and the juror's acquaintance with a witness, were each considered and rejected.
On sentence, the Court acknowledged that the eight years and four months total term for the armed robbery offence was severe, but concluded it was warranted. The sentencing judge had properly taken into account the appellant's criminal history, including a prior serious violent offence committed in the Northern Territory, and the fact that the offence was committed while the appellant was on parole. The Court found no error, manifest or otherwise, in the sentences imposed on either the principal charge or the escape charge.
The Court also addressed the appellant's suggestion that Judge Shillington had sentenced him more harshly because of his contemptuous escape from the courtroom. Having reviewed the sentencing remarks, the Court found no evidence that the judge was influenced by the appellant's conduct in that regard.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- A different evidentiary ruling by a different judge in a prior proceeding does not, without more, establish bias on the part of a later trial judge who reaches the opposite conclusion on what may have been different evidence and argument.
- Where a jury verdict is challenged as unreasonable, it will be upheld if the evidence, including admissions and circumstantial material, was capable of supporting the finding of guilt beyond reasonable doubt.
- Sentencing courts are entitled to treat a subsequent offence of a broadly similar violent character as an aggravating factor, even where the precise circumstances differ, provided there are sufficient similarities between the two offences.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that offending while on parole is a legitimate and weighty consideration in fixing a custodial term.
- No error was established simply because a sentencing judge imposed a severe sentence following a defendant's contemptuous escape from court; the Court found the remarks on sentence disclosed a fair and impartial process.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 138
- Crimes Act 1900 (NSW)
Cases:
- Black v R (1993) 179 CLR 44
- R v M (1994) 181 CLR 487
- Fleming v R (1998) ALR 379