Citation: Regina v Wilson [2005] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 15 February 2005
Judges: Hunt AJA, Grove J, James J
Background
The appellant was convicted by a Supreme Court jury of the manslaughter of a child, almost two years old, who was in her foster care. The jury acquitted her of murder, finding instead that she had committed an unlawful and dangerous act causing the child's death. Medical evidence established that the child had died from Shaken Baby Syndrome, with the relevant shaking occurring approximately thirty minutes before death.
The appellant had not given evidence at trial. However, the Crown had tendered videotaped police interviews in which she gave her account of events, describing finding the child in distress and taking him to a doctor. The trial judge sentenced her to nine years' imprisonment with a non-parole period of six years and eleven months.
The appellant challenged both her conviction and her sentence on appeal.
Legal Issues
- Whether the trial judge's directions to the jury regarding the appellant's election not to give evidence were adequate, specifically whether the directions should have included all four elements of a full "Azzopardi direction" (derived from the High Court's decision in Azzopardi v The Queen (2001) 205 CLR 50)
- Whether the absence of certain elements from the direction constituted an error that led to a miscarriage of justice, particularly given no complaint was raised at trial
- Whether the sentencing judge had erred by misdirecting himself on the existence of a recognised sentencing range for manslaughter of a young child
- Whether the sentencing judge erred by referring to aggravating matters without indicating whether those matters were accepted or rejected
Decision
Conviction appeal: The trial judge directed the jury that no inference of guilt could be drawn from the appellant's absence from the witness box, and that her out-of-court statements to police were evidence to be taken into account, though not of the same quality as sworn testimony. The direction did not include certain elements of the full Azzopardi direction, specifically the instruction that the absence of evidence from the accused could not be used to fill gaps in the Crown case or add weight to the prosecution.
The Court found that, on the facts of this case, those missing elements were not "desirable." The jury had already heard the appellant's extensive version of events through the police interview tapes. The missing elements of the Azzopardi direction were directed at preventing the jury from reasoning impermissibly about an accused who had said nothing at all, which was not the situation here. Because no complaint was raised at trial, the appellant also needed to demonstrate under Rule 4 of the Criminal Appeal Rules that the alleged error caused a miscarriage of justice, which she could not do. The conviction appeal was dismissed.
The Court also considered the appellant's reliance on Regina v Macris [2004] NSWCCA 261, concluding that, to the extent that decision endorsed a broader obligation to give a full Azzopardi direction, it should not be followed. Both Grove J and Hunt AJA expressed this view, with Grove J specifically recording his agreement that Macris should not be followed on this point.
Sentence appeal: The Court found two errors in the sentencing judge's approach. First, the judge had misdirected himself by suggesting there was a recognised range of sentences for manslaughter of a young child. Second, the judge had referred to matters of aggravation without clearly indicating whether each had been accepted or rejected. These errors required the Court to resentence. Taking into account the circumstances of the offence, the appellant's psychiatric condition, and the harsh conditions in which she was being held in custody, the Court reduced the head sentence to six years.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Sentence appeal upheld
- Original sentence of nine years' imprisonment quashed
- New head sentence of six years' imprisonment imposed, commencing 28 October 2003
- Non-parole period of four years and six months set, with earliest parole eligibility on 28 April 2008
Key Takeaways
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A full Azzopardi direction is not required in every case where an accused elects not to give evidence. The elements of the direction relating to gaps in the Crown case are directed at situations where the accused has provided no version at all, and may not be "desirable" where the accused's account has already been placed before the jury through tendered police interview recordings.
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To the extent Regina v Macris [2004] NSWCCA 261 was understood to require a full Azzopardi direction regardless of the specific facts, the Court of Criminal Appeal declined to follow it, reaffirming the approach taken in Richards, SMR, and Park.
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Where an accused raises a deficiency in jury directions for the first time on appeal (having made no complaint at trial), Rule 4 of the Criminal Appeal Rules requires a demonstrated miscarriage of justice before leave will be granted to rely on the error.
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A sentencing court errs by directing itself that a recognised range of sentences exists for manslaughter of a young child where no such range has been established.
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Referring to aggravating factors at sentencing without indicating whether those factors were accepted or rejected also constitutes a sentencing error sufficient to require resentencing.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
Key Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- RPS v The Queen (2000) 199 CLR 620
- Weissensteiner v The Queen (1993) 178 CLR 217
- Regina v Macris [2004] NSWCCA 261
- Regina v Richards [2002] NSWCCA 38
- Regina v SMR [2002] NSWCCA 258
- Regina v Park [2003] NSWCCA 203
- Regina v Hoerler [2004] NSWCCA 184
- Regina v Blacklidge (CCA, unreported, 12 December 1995)
- Regina v Fuge [2001] NSWCCA 208
- Jones v Dunkel (1959) 101 CLR 298
- Papakosmas v The Queen (1999) 196 CLR 297