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22
Court of Criminal Appeal 11 November 2003

R v Fowler

[2003] NSWCCA 321

Also reported as (2003) 151 A Crim R 166
Homicide
CRIMINAL LAW ACCUSED CONVICTED OF MURDER APPEAL AGAINST CONVICTION CIRCUMSTANTIAL EVIDENCE MOTIVE ACCESSORIAL LIABILITY

Citation: R v Fowler [2003] NSWCCA 321
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2003
Judge(s): Tobias JA, James J, Howie J

Background

The appellant was convicted of murdering Trevor Climpson on 8 January 1988. This was his third conviction for the same offence, the two preceding convictions having been set aside following successful appeals to the Court of Criminal Appeal. Simpson J sentenced the appellant to 10 years and 10 months imprisonment, with a non-parole period of 6 years and 10 months.

The Crown case was entirely circumstantial. It alleged that the appellant either personally inflicted one or more of the fatal bullet wounds, or was present at the scene aiding and encouraging the shooter. The evidence spanned several categories: opportunity to be at the scene, motive, inclination, links to the weapons used, and a range of conduct said to demonstrate consciousness of guilt (including five instances of alleged lies, concealment of weapons, and statements made during a telephone call).

The appellant brought thirteen grounds of appeal against conviction, all directed at the admissibility of evidence or the adequacy of the trial judge's directions to the jury. He also sought leave to appeal against sentence, contending that the disruption to his liberty over the lengthy period of three trials and associated bail conditions warranted a lesser sentence.

  • Whether the trial judge's directions on lies as evidence of consciousness of guilt were adequate and correct
  • Whether the directions on circumstantial evidence were adequate
  • Whether the directions on motive were correct
  • Whether the directions on accessorial liability were adequate
  • Whether the trial judge should have issued warnings to the jury about particular categories of evidence
  • Whether the trial judge erred in permitting cross-examination of a particular witness
  • Whether the trial judge erred in admitting certain evidence
  • Whether the trial judge's directions on the meaning of an unsworn statement were correct
  • Whether the prolonged disruption to the appellant's liberty during the period spanning three trials warranted a reduction in sentence or a finding of special circumstances

Decision

The Court dismissed all thirteen grounds of appeal against conviction. The Court found no error in the trial judge's directions on consciousness of guilt, circumstantial evidence, motive, or accessorial liability. The rulings on the admissibility of evidence and the cross-examination of witnesses were also upheld.

On the sentence appeal, the Court accepted that the disruption to the appellant's liberty and the uncertainty he experienced across three trials were relevant sentencing considerations. The primary judge had acknowledged these matters, as had the sentencing judge before her. However, the Court held that a trial judge is not required to reduce a sentence merely because such factors exist. The weight given to them will vary according to the purposes the sentence must serve, including denunciation and general deterrence.

The Court concluded that the sentence imposed by Simpson J represented the very least the appellant should serve for the offence. This assessment was shared by senior counsel who appeared for the appellant at the sentencing hearing. No error was established in the sentence.

On special circumstances (which, under the Crimes (Sentencing Procedure) Act, can justify varying the standard ratio between the non-parole period and the total sentence), the Court held that the prolonged bail conditions and uncertainty were not the type of matters warranting a reduction in the non-parole period. There was no indication that a longer supervisory period on parole was needed.

Orders Made

  • Appeal against conviction is dismissed.
  • Leave to appeal against sentence is granted, but the appeal is dismissed.

Key Takeaways

  • In dismissing all thirteen grounds of appeal, the Court of Criminal Appeal confirmed that no single category of error was established in the trial judge's directions or evidentiary rulings across a complex, wholly circumstantial murder case.
  • A trial judge is not obliged to reduce a sentence solely because an offender experienced significant disruption to liberty and prolonged uncertainty as a result of multiple trials and lengthy bail conditions. These factors are relevant but the weight given to them depends on the purposes the sentence must serve.
  • Where a sentence is required to address denunciation of the crime and general deterrence, onerous bail conditions and trial delays may carry less weight in the sentencing calculus than in cases where rehabilitation is the primary concern.
  • Prolonged bail conditions and uncertainty spanning multiple trials do not automatically constitute special circumstances justifying a departure from the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act, absent evidence that a longer period of supervision on parole is warranted.
  • The decision is fact-specific and turns heavily on the particular circumstances of a third conviction following two successful appeals. Its observations on the sentencing relevance of bail disruption are framed in qualified terms and should not be read as establishing any fixed rule about the weight to be accorded such factors.

Legislation and Cases Referenced

Legislation:
- Evidence Act, ss 32(2)(b)(i), 38, 55, 137, 165, 192
- Criminal Appeal Rules, r 4
- Crimes (Sentencing Procedure) Act, s 44

Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- Dhanhoa v The Queen (2003) 77 ALJR 1433
- Shepherd v The Queen (1990) 170 CLR 573
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Longman v The Queen (1989) 168 CLR 79
- Graham v The Queen (1998) 195 CLR 606
- Stanoevski v The Queen (2001) 202 CLR 115
- Broadhurst v The Queen [1964] AC 441
- R v Fuge (2001) 123 A Crim R 310
- R v Button and Griffin [2002] NSWCCA 159
- R v Ita [2003] NSWCCA 174
- R v Dellapatrona & Duffield (1993) 31 NSWLR 123
- R v Stewart (2001) 52 NSWLR 301
- R v Fowler (No 2) [2000] NSWCCA 142
- R v Adam (1999) 106 A Crim R 510
- R v Murphy (1985) 4 NSWLR 42
- Harris v The Queen (1990) 55 SASR 321
- Penny v The Queen (1998) 72 ALJR 1316
- R v O'Leary (1946) 73 CLR 566