Citation: [2003] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 6 February 2003
Judge(s): Heydon JA; Hulme J; Hidden J
Background
The appellant was convicted by a jury of the murder of his de facto wife, who died from gunshot wounds on 24 December 1997. There was no dispute that he fired the rifle that killed her. The central issue at trial was whether he had the requisite intent to kill or cause grievous bodily harm, given evidence of his alcohol consumption and use of the antidepressant Zoloft, supported by expert testimony about their combined effects.
The Crown relied on a motive of jealousy and obsession. To establish this, the Crown led evidence of several incidents involving the appellant and another man, including threats made to that man, a covert assault on him in a pub toilet, and a car park altercation. The Crown also led evidence of an earlier incident at a wedding where the appellant became angry when another man showed interest in the deceased. No objection was raised to any of this evidence during the trial, but after one witness concluded, defence counsel applied to discharge the jury on the basis that the evidence had introduced bad character and past offending.
Ireland J refused the application. The appellant appealed against both conviction and sentence following a term of 21 years imprisonment with a minimum term of 16 years, both commencing from the date of arrest.
Legal Issues
- Whether the evidence of prior threatening conduct and violence toward a third man constituted tendency evidence within the meaning of s 97 of the Evidence Act 1995 (NSW), and if so, whether its admission was legally defensible
- Whether the trial judge erred by failing to consider ss 97, 101, and 137 of the Evidence Act before admitting the evidence
- Whether, if error was established, the proviso (allowing a conviction to stand despite a trial irregularity where no substantial miscarriage of justice occurred) should nonetheless be applied
- Whether the sentence of 21 years was excessive in all the circumstances
Decision
On the tendency evidence ground, Hulme J acknowledged there was considerable force in the argument that the evidence was tendency evidence designed to show the appellant had a jealous and violent disposition, noting that the Crown's own framing of the case as one of "jealousy and obsession" carried that implication. His Honour observed that the trial judge did not appear to have turned his mind to the relevant statutory provisions. However, Hulme J declined to resolve definitively whether the evidence was improperly admitted.
On the application of the proviso, the court found that even if the trial judge had erred in admitting the evidence, the proviso applied and the conviction should stand. The evidence of the appellant's guilt was overwhelming, and the jury's verdict would inevitably have been the same absent the disputed material. Heydon JA and Hidden J both agreed with this conclusion, making it unnecessary to resolve the difficult tendency evidence questions.
On sentence, Hulme J and Heydon JA upheld the sentence as within the proper exercise of sentencing discretion. The sentencing judge had found significant aggravating features: the degree of planning involved, the brutal shooting of a defenceless woman in her home with multiple wounds, and a motive of ensuring that if the appellant could not have the deceased, no one else would. The offence carried a maximum of life imprisonment, and the sentence was found to fall well within the legitimate range.
Hidden J dissented on sentence. His Honour considered 21 years excessive given the appellant's age, background, and the sentencing judge's own finding that re-offending was unlikely. He would have imposed a head sentence in the order of 18 to 19 years with a non-parole period of around 14 years, though he agreed the appeal against conviction should be dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed (by majority, including as to sentence)
Key Takeaways
- The Court of Criminal Appeal confirmed that where evidence of prior threatening and violent conduct is led to establish motive, it may well constitute tendency evidence attracting the requirements of ss 97 and 101 of the Evidence Act, even if the Crown frames it as going to the "relationship" between the accused and the deceased.
- In dismissing the conviction appeal, the court applied the proviso without resolving the underlying evidentiary questions, illustrating that unresolved admissibility issues will not produce a successful appeal where the evidence of guilt is otherwise overwhelming.
- A failure by a trial judge to address the statutory framework governing tendency evidence (ss 97, 101, and 137) may constitute error, but that error alone does not guarantee appellate intervention if the proviso can be applied.
- Aggravating features identified by the sentencing court included planning, the vulnerability of the victim in her home, and the deliberate infliction of multiple fatal wounds motivated by a determination to deny the victim any independent future.
- Hidden J's dissent demonstrates that sentencing appeals remain closely contested where a sentencing judge's own findings about future risk sit in tension with the overall length of the term imposed.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 97, 99, 101, 137
Cases:
- Pfennig v R (1995) 182 CLR 461
- Wilson v R (1970) 123 CLR 334
- R v Serratore (1999) 48 NSWLR 101
- AN (2000) A Crim R 176
- R v White (unreported, CCA, 23 June 1998)
- R v Wright (1997) 93 A Crim R 48
- R v Engert (1995) 84 A Crim R 67
- R v Previtera (1997) 94 A Crim R 76