Citation: M.A.H. v Regina; Regina v M.A.H. [2006] NSWCCA 226
Court: New South Wales Court of Criminal Appeal
Date: 27 July 2006
Judge(s): Grove J, Hidden J, Kirby J
Background
The appellant, aged 17 at the time of the offence in October 2000, was convicted of murdering a mutual friend, also aged 17, who disappeared after the two drove together to the Cordeaux Dam area. The victim's skeletal remains were not discovered until 2003, when an accomplice (JSK) confessed to police and led investigators to a shallow grave. JSK, who had pleaded guilty to murder and agreed to give evidence against the appellant, testified that the appellant instigated and led the killing, providing jealousy over a shared girlfriend as the motive.
The appellant denied any involvement and claimed JSK was falsely implicating him to protect others. Following conviction at trial before Hislop J in the Supreme Court, the appellant was sentenced to 22 years' imprisonment with a non-parole period of 16.5 years.
Three proceedings came before the Court of Criminal Appeal: the appellant's conviction appeal, the appellant's alternative application for leave to appeal against the severity of his sentence, and a Crown appeal contending the sentence was manifestly inadequate.
Legal Issues
- Whether the trial judge gave adequate directions to the jury on the use of motive evidence, particularly evidence of the appellant's jealousy over his girlfriend
- Whether the trial judge erred in granting leave to cross-examine JSK as a witness who was not making a genuine attempt to give evidence, and whether that finding required contemporaneity between the events and the prior statement used in cross-examination
- Whether the trial judge's directions on the significance of lies told by the accused were erroneous
- Whether the sentence of 22 years with a 16.5-year non-parole period was manifestly inadequate (Crown appeal) or manifestly excessive (appellant's application), given both the offender and victim were aged 17
Decision
On the motive directions ground, the Court found no error. The trial judge had correctly directed the jury that motive evidence was not being used as proof of guilt in itself, but rather to support the credibility of JSK's accomplice testimony. The directions were appropriate to the purpose for which the motive evidence was tendered.
On the cross-examination of JSK, the Court upheld the trial judge's finding that JSK was not making a genuine attempt to give evidence, which provided the statutory basis for granting leave to cross-examine him on his prior statements. The Court also rejected the appellant's argument that the prior statements could only be used if they related to events contemporaneous with when those statements were made. No such requirement exists.
The Court found no error in the directions concerning lies. The jury had been properly directed on how to treat evidence that the appellant had told lies, consistent with established principle.
On sentence, the Court found the sentence was lenient but not manifestly inadequate, placing it within the range supported by comparable cases. The appellant's submission that the sentence was "crushing" for a young offender was rejected, as the term fell within the sound exercise of sentencing discretion. The Court also rejected the appellant's parity argument based on JSK's lesser sentence, noting that JSK received a discount for his guilty plea and further leniency for giving evidence against the appellant, an arrangement that carried its own personal costs.
Orders Made
- Appeal against conviction dismissed
- Crown appeal against sentence dismissed
- Application for leave to appeal against sentence (by the offender) refused
Key Takeaways
- Motive evidence in a murder trial does not become legally problematic simply because it is presented without direct proof of guilt; the Court of Criminal Appeal confirmed it can properly be used to support the credibility of an accomplice's testimony, provided the jury is correctly directed on that limited purpose.
- A finding by a trial judge that a witness is not making a genuine attempt to give evidence is sufficient to ground leave for cross-examination on prior statements under the Evidence Act 1995, and there is no requirement that those statements be contemporaneous with the events to which they relate.
- No error was established in the trial judge's lies directions, which followed established authority on how juries should treat evidence that an accused has told falsehoods.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that a co-offender's lesser sentence does not automatically give rise to a justifiable sense of grievance where that co-offender earned reductions through a guilty plea and by giving evidence against the appellant.
- Comparable cases from the period indicated the sentence, while lenient on the Court's assessment, fell within the discretionary range; the threshold of manifest inadequacy required to enliven a Crown appeal against sentence was not met.
Legislation and Cases Referenced
Legislation:
- Children's (Criminal Procedure) Act 1987
- Criminal Appeal Act 1912
- Evidence Act 1995
Cases:
- Adams v The Queen (2001) 207 CLR 96
- De Gruchy v The Queen (2002) 211 CLR 85
- Lowe v The Queen (1984) 154 CLR 606
- M v The Queen (1984) 181 CLR 487
- Penney v The Queen (1998) 72 ALJR 1316
- R v Mungomery (2004) 151 A Crim R 376
- R v Pantoja (NSWCCA, unreported, 5 November 1998)
- R v Previtera (1997) 97 A Crim R 76
- R v Simpson (2001) NSWLR 704
- The Queen v Olbrich (1999) 199 CLR 270
- Zoneff v The Queen (2000) 200 CLR 234