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Court of Criminal Appeal 27 October 2003

R v Hunt

[2003] NSWCCA 301

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION EVIDENCE PRACTICE

Citation: Hunt v R [2003] NSWCCA 301
Court: New South Wales Court of Criminal Appeal
Date: 27 October 2003
Judge(s): Tobias JA, Howie J, Shaw J

Background

The appellant was convicted by a jury of murder following the fatal stabbing of his then-partner at a caravan park in Uralla in June 2000. Earlier that evening, police had attended the couple's residence after an assault complaint, and the appellant had threatened to kill the deceased in the presence of a constable before being removed. After being driven home by police in the early hours of the morning, the appellant returned to the deceased's home and attacked her with a kitchen knife, inflicting multiple fatal stab wounds.

Following his arrest, the appellant claimed to have consumed a large overdose of Oxazepam tablets. Medical evidence established that while he showed signs consistent with an overdose, he remained oriented as to person and place in the immediate aftermath. Expert forensic evidence indicated the overdose was likely consumed after the attack, and that the drug was unlikely to have caused the acute rage exhibited that night.

On 19 February 2002, the trial judge sentenced the appellant to 14 years imprisonment with a non-parole period of 10 years. The appellant challenged his conviction on several grounds; there was no appeal against sentence.

  • Whether the trial judge should have excluded evidence under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice
  • Whether the trial judge was required to issue a s 165 warning or a Longman warning regarding evidence affected by a witness's medical condition
  • Whether the absence of such a warning caused a miscarriage of justice, particularly in circumstances where defence counsel had not sought the exclusion or any warning at trial
  • Whether a direction in the trial judge's summing up gave the jury the impression that the judge believed the accused was guilty
  • Whether a particular error in the summing up (the apparent insertion of the word "not") amounted to a misdirection that gave rise to an appealable error

Decision

On the evidentiary grounds, the Court of Criminal Appeal considered whether the trial judge should have acted of his own motion to exclude evidence or to warn the jury about its reliability given a witness's medical condition. The Court noted that defence counsel at trial had not sought either exclusion under s 137 or a warning under s 165 of the Evidence Act 1995 or under Longman. In those circumstances, the Court was not persuaded that the trial judge's failure to intervene unprompted produced any miscarriage of justice.

On the summing up, the Court examined a direction that appeared, on the face of the transcript, to contain the word "not" in a phrase concerning whether the Crown had persuaded the jury that the accused deliberately murdered the deceased. The Court accepted that this was either a typographical error in transcription or an unintended slip by the trial judge. Viewed in the context of the summing up as a whole, including repeated and forceful directions that deliberateness was a necessary ingredient the Crown had to establish beyond reasonable doubt, there was no real possibility the jury was misled.

The Court also rejected the contention that the summing up conveyed an impression of judicial partiality toward a guilty verdict. Reading the impugned passages alongside the surrounding directions, the Court found no proper basis for concluding that the jury was misdirected in a manner that gave rise to an appealable error. Even if a ground could theoretically have been made out, the Court indicated it would have applied the proviso in s 6(1) of the Criminal Appeal Act 1912, satisfied that no substantial miscarriage of justice had actually occurred.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where defence counsel at trial did not seek exclusion of evidence under s 137 of the Evidence Act 1995 or request a Longman or s 165 warning, the failure of a trial judge to act of his own motion will not automatically produce a miscarriage of justice.
  • A conviction will not be overturned on the basis of an apparent verbal or transcription error in a summing up where the direction, read in context, could not realistically have misled the jury.
  • In dismissing the appeal, the Court reaffirmed that summing up directions must be assessed as a whole, not by isolating individual phrases or passages.
  • Under s 6(1) of the Criminal Appeal Act 1912, even a technical error in a trial judge's directions will not ground a successful appeal where no substantial miscarriage of justice has actually resulted.
  • Sufficient evidence existed in this case, including an express threat made in the presence of police, forensic and medical evidence about the timing of a drug overdose, and the circumstances of the attack, to sustain the jury's verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 353A, 428C(1)
- Evidence Act 1995 (NSW), ss 137, 165
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 4

Cases:
- Longman v The Queen (1989) 168 CLR 79
- TKWJ v R (2002) 76 ALJR 1579
- Crampton v The Queen (2000) 206 CLR 161
- R v Moussa [2001] NSWCCA 427
- R v Johnston (1998) 45 NSWLR 362
- R v Stewart (2001) 52 NSWLR 301
- R v Baartman [2000] NSWCCA 298
- R v Chai [2002] NSWCCA 512
- R v Ambrosoli [2002] NSWCCA 386
- R v GK (2001) 53 NSWLR 317