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Court of Criminal Appeal 14 July 2005

Knight v R

[2005] NSWCCA 241

Homicide
CRIMINAL LAW SUMMING UP EVIDENCE SENTENCING GAOL MURDER SENTENCE NOT EXCESSIVE.

Citation: Knight v R [2005] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 14 July 2005
Judge(s): Grove J, Howie J, Rothman J

Background

The appellant was a prisoner at Bathurst Correctional Centre who was convicted of the murder of a fellow prisoner, Craig Dally, who was found dead in his cell on 27 March 2000 with 33 stab wounds and a cut throat. The Crown case was circumstantial, relying principally on DNA and other forensic evidence to establish the appellant's involvement and to undermine his exculpatory account of his whereabouts at the time of the killing.

Officers found the appellant shirtless and barefoot in another prisoner's cell shortly after sounds of an assault were reported. He had a bandaged right hand, later confirmed to be a laceration consistent with a stab wound. Bloodstained boots were found outside his cell, and luminol testing revealed a trail of shoe impressions leading from the deceased's cell.

Following conviction, the trial judge (Barr J in the Supreme Court) sentenced the appellant to 22 years' imprisonment with a non-parole period of 16 and a half years. The appellant appealed against both conviction and sentence.

  • Whether the trial judge erred by failing to direct the jury on the absence of any established motive, in a circumstantial case
  • Whether the trial judge erred by failing to give a warning under s 165(1)(a) of the Evidence Act 1995 that a Crown witness (Rose) might be biased, given the circumstances of her evidence
  • Whether the verdict was unsafe because of the admission of Rose's evidence
  • Whether the sentence of 22 years with a 16.5-year non-parole period was excessive, including whether the principles in R v Fernando (concerning the Aboriginal background of an offender) were properly applied

Decision

Conviction grounds. By the time the appeal was heard, counsel for the appellant had withdrawn all grounds except those arising from the evidence of the Crown witness Rose. The remaining challenge was that the verdict was unsafe because of how Rose's evidence had been admitted and used, including the failure to warn the jury under s 165 that she might be biased. The Court dismissed these grounds, finding no error that would render the conviction unsafe.

Motive direction. Although the absence of established motive in a circumstantial case can be a relevant consideration for a jury, the Court found no reversible error in the summing-up on this point sufficient to disturb the conviction.

Sentencing and Fernando principles. The appellant argued that his Aboriginal background and disconnection from family and community should have led to a reduced sentence under the principles established in R v Fernando. The Court rejected this submission. Howie J noted that the appellant was an intelligent and self-reliant person who had travelled widely by choice and who, on his own account, began using cannabis after returning from voluntary travel. There was no evidence connecting his background or loss of family ties to the commission of this offence, and the Court found it impossible to see how such considerations could account for the severe violence involved in the murder or warrant any reduction in sentence.

Sentence. The Court acknowledged the sentence was a heavy one but found it was within the discretionary range available to the sentencing judge and that no error in the sentencing approach had been demonstrated.

Orders Made

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

Key Takeaways

  • The Court of Criminal Appeal confirmed that the mere failure to give a jury direction on absence of motive, or a s 165 bias warning, will not automatically warrant setting aside a conviction; the question is whether the omission rendered the verdict unsafe on the facts.
  • Under s 165(1)(a) of the Evidence Act 1995, a warning that a witness may be biased is not automatically required in every case; its absence will only ground an appeal where the resulting unfairness is demonstrated to have affected the outcome.
  • In dismissing the sentence appeal, the Court clarified that the Fernando principles do not operate as a general mitigating factor for all offenders of Aboriginal background; there must be a demonstrated connection between the relevant disadvantage and the offending conduct.
  • No error in the sentencing discretion was established simply because the sentence was heavy; a sentence for a serious gaol murder involving extreme violence will attract a substantial term even where Fernando-type considerations are raised.
  • Sufficient forensic evidence, including DNA, boot prints in blood, and a wound consistent with a knife injury, can sustain a circumstantial murder conviction where the accused's exculpatory account is shown to be implausible.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 137, 165(1)(a)

Cases:
- R v Fowler [2003] NSWCCA 321
- R v El-Azzi [2004] NSWCCA 455
- Plomp v The Queen (1963) 110 CLR 234
- De Gruchy v The Queen (2002) 211 CLR 85
- R v Fernando (1992) 76 A Crim R 58
- R v Newman and Simpson (2004) 145 A Crim R 361