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Court of Criminal Appeal 27 July 2004

R v Crowther-Wilkinson

[2004] NSWCCA 249

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER PLEA OF NOT GUILTY CO ACCUSED JOINTLY INDICTED

Citation: Crowther-Wilkinson v R [2004] NSWCCA 249
Court: New South Wales Court of Criminal Appeal
Date: 27 July 2004
Judge(s): Wood CJ at CL; Dowd J; Kirby J

Background

The appellant was convicted of murdering his business partner, with whom he co-owned a security company. The deceased was last seen alive at the company's office on the evening of 6 June 2000. His body was found weeks later in the Hawkesbury River, weighted with chains and shackles. The Crown relied on a circumstantial case built from approximately 40 individual strands of evidence.

The appellant was jointly tried with a co-accused, James Cowie. The jury returned a guilty verdict against the appellant and an acquittal in respect of Cowie. The appellant was sentenced to 20 years' imprisonment with a 15-year non-parole period.

The appeal challenged the conviction on three grounds but did not seek to disturb the sentence.

  • Whether the jury's verdict was unreasonable and could not be supported by the evidence
  • Whether a miscarriage of justice arose from the trial judge's failure to direct the jury that it could not convict unless satisfied beyond reasonable doubt that the appellant had planned the murder (a so-called "Shepherd direction")
  • Whether the trial miscarried because two interlocutory Supreme Court judgments, concerning the co-accused's application for a separate trial and the admissibility of a police statement, had been published on the court's website and were accessible during the trial

Decision

Ground 1: Unreasonable verdict. The Court of Criminal Appeal found that the Crown's circumstantial case was compelling. All 40 evidentiary strands had been properly before the jury and open for their consideration. Applying the test in M v The Queen (1994) 181 CLR 487, the court was not persuaded that no reasonable jury could have returned the verdict it did.

Ground 2: Absence of a Shepherd direction. A Shepherd direction requires a jury to be satisfied of particular intermediate facts beyond reasonable doubt before using them as the basis for an inference of guilt. The appellant had not sought this direction at trial and had positively indicated it was not needed. The Court of Criminal Appeal held that the Crown case was run squarely on the basis of planning and joint criminal enterprise, supported by an overwhelming body of circumstantial evidence. Given the way the trial was conducted and the concession made below, leave to raise this ground on appeal was refused.

Ground 3: Internet publication of interlocutory judgments. Two interlocutory rulings had been published on the court's website during the trial. The court acknowledged that material from official court or legal publisher websites may carry greater weight with jurors than populist media sources, and that this distinction could be decisive where actual access by a juror is established. However, no evidence existed that any juror had in fact accessed those judgments. The trial judge had directed the jury not to search the internet and, in summing up, had instructed the jury to decide the case on the evidence alone. Most of the factual content in the published judgments had been placed before the jury at trial in any event. Applying a realistic appraisal of whether an unacceptably high risk of prejudice arose, the court dismissed this ground.

Orders Made

  • Appeal dismissed
  • Conviction and sentence below confirmed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal affirmed that a circumstantial case built from multiple evidentiary strands can be compelling and capable of supporting a murder conviction, even where a co-accused is acquitted on the same facts.
  • A Shepherd direction (requiring the jury to be satisfied of intermediate facts beyond reasonable doubt before drawing an inference of guilt) need not be given in every circumstantial case; where a party positively indicates at trial that the direction is unnecessary, appellate leave to raise the issue is likely to be refused.
  • The mere possibility that jurors accessed prejudicial material on the internet does not, without more, establish a miscarriage of justice; the test requires a realistic appraisal of whether an unacceptably high risk of prejudice actually eventuated.
  • Official court-published judgments accessible online during trial may attract greater weight and credence from jurors than media publications, and the court noted this distinction could be decisive where a juror's actual access is demonstrated.
  • Trial directions instructing jurors to decide the case only on the evidence and to refrain from searching the internet remain a significant factor in assessing whether internet-accessible material has caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), s 108

Cases:
- Crofts v The Queen (1986) 186 CLR 427
- Glennon v The Queen (1992) 173 CLR 592
- Hinch v Attorney General (Vic) (No. 2) (1998) 164 CLR 15
- M v The Queen (1994) 181 CLR 487
- Murphy v The Queen (1989) 167 CLR 94
- R v Bell (NSWCCA, 8 October 1998)
- R v Crowther-Wilkinson and Cowie [2002] NSWSC 1207
- R v Crowther-Wilkinson and Cowie [2003] NSWSC 44
- R v Crowther-Wilkinson and Cowie [2003] NSWSC 226
- R v Loguancio (2000) 1 VR 235
- R v Yuill (1993) 69 A Crim R 450
- R v Zaiter [2004] NSWCCA 35
- Shepherd v The Queen (1990) 170 CLR 573