Citation: Regina v Warren Alan Forbes [2005] NSWCCA 377
Court: New South Wales Court of Criminal Appeal
Date: 4 November 2005
Judge(s): Spigelman CJ; McClellan CJ at CL; Hall J
Background
The appellant was convicted of the manslaughter of Andrew Hullick after being found not guilty of murder. He had separately pleaded guilty to the manslaughter of Ross Kimball. Both killings occurred in May 2002. The Hullick killing involved the appellant shooting the deceased four times with a .357 Magnum revolver inside a caravan in the early hours of the morning.
The appellant's case at trial was one of self-defence. He alleged the deceased had become aggressive, loaded a rifle, and charged at him. The jury rejected a full self-defence acquittal but accepted that the force used may have been excessive, resulting in a manslaughter verdict on the basis of excessive self-defence. The appellant took steps to conceal his involvement after the shooting, including cleaning his car, disposing of clothing, and burning potential gunshot residue from his fingernails.
The sentencing judge, Hulme J, imposed 12 years imprisonment for each manslaughter, with the Hullick sentence commencing seven years after the Kimball sentence. This produced a total effective sentence of 19 years with a 15-year non-parole period. The appellant challenged both his conviction and both sentences.
Legal Issues
- Whether the discovery of a juror in possession of written material possibly related to the trial caused the trial to miscarry
- Whether pre-trial and trial publicity was sufficiently prejudicial to warrant a new trial, and whether jury directions were adequate to overcome that prejudice
- Whether the trial judge's self-defence directions were correct in law, and whether the combination of written and oral directions was confusing
- Whether the sentencing judge failed to give adequate weight to the appellant's guilty plea to the Kimball manslaughter and an offer to plead guilty
- Whether the 12-year sentences for each manslaughter were manifestly excessive
Decision
Conviction appeal: The Court of Criminal Appeal dismissed the appeal against conviction. On the juror misconduct ground, the Court was satisfied that the trial judge's directions were sufficient to cure any irregularity arising from the juror's possession of written material. The Court similarly found that the directions given to address pre-trial and trial publicity were adequate to overcome any potential prejudice.
Self-defence directions: The Court examined whether the trial judge's departure from the standard bench book formulation on self-defence had produced a misdirection. The Court found that, despite the trial judge not following the bench book, the directions given were correct in law. The combination of written and oral directions was not found to be so confusing as to have caused a miscarriage of justice.
Sentence appeal (Kimball): The Court found that the 12-year head sentence for the Kimball manslaughter was manifestly excessive. Having surveyed comparable manslaughter sentences, Hall J concluded that the sentence sat above the high end of the relevant range. The Court substituted a sentence of nine years imprisonment with a non-parole period of six years and nine months.
Sentence appeal (Hullick): The Court granted leave to appeal against the Hullick sentence as well. It restructured the sentencing to impose 12 years imprisonment with a non-parole period of eight years, commencing 1 March 2007. The adjusted sentences produced a revised total effective term reflecting the differing levels of criminality involved in each offence.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal from each sentence granted
- Original sentences quashed and the following substituted:
- Kimball manslaughter: nine years imprisonment commencing 29 May 2002, non-parole period of six years and nine months expiring 28 February 2009
- Hullick manslaughter: 12 years imprisonment commencing 1 March 2007 expiring 28 February 2019, non-parole period of eight years expiring 28 February 2015
Key Takeaways
- A trial judge's departure from the standard bench book formulation for self-defence directions does not necessarily constitute a misdirection; the question is whether the directions actually given were correct in law and not productive of confusion that caused a miscarriage.
- Directions to the jury addressing juror misconduct and pre-trial publicity can be sufficient to cure identified irregularities, provided those directions adequately and clearly address the potential prejudice.
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that neither juror misconduct involving possibly trial-related material nor adverse publicity will automatically vitiate a verdict where appropriate curative directions were given.
- A comparison with comparable manslaughter sentences is a legitimate tool for assessing whether a sentence is manifestly excessive; the Court found the 12-year head sentence for the Kimball manslaughter fell above the high end of the available range on the facts.
- Under s 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea and an offer to plead guilty are matters to be weighed in sentencing; a failure to give them adequate consideration can constitute a sentencing error warranting appellate intervention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 24, 410, 418, 419, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(k)
- Criminal Appeal Act 1912 (NSW), ss 5F, 6
- Jury Act 1977 (NSW), s 55B
Cases:
- Doggett v The Queen (2001) 208 CLR 343
- Gilbert v The Queen (2000) 201 CLR 408
- McAuliffe v The Queen (1995) 183 CLR 108
- The Queen v Glennon (1992) 173 CLR 592
- Dietrich v The Queen (1992) 177 CLR 292
- Driscoll v The Queen (1977) 137 CLR 517
- John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
- R v Skaf (2004) 60 NSWLR 86
- R v K (2003) 59 NSWLR 431
- R v Forbes [2004] NSWCCA 55
- R v Tangye (1997) 92 A Crim R 545
- R v Hoerler (2004) 147 A Crim R 520
- R v Clifford [2005] NSWCCA 360