Citation: CLEVERLY, Richard v. Regina [2007] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 25 June 2007
Judge(s): Hodgson JA, Grove J, Simpson J
Background
The appellant was convicted of the murder of his aunt, Susan Smith, who was found strangled in her West Ryde home on 3 July 2002. The Crown's case rested entirely on circumstantial evidence, including DNA found under the deceased's fingernails, fibre evidence from the appellant's clothing, fingerprint and palm print evidence, and the appellant's inconsistent accounts to police.
The appellant had initially denied visiting the house that evening, then later told police he had found his aunt's body but fled without calling for help. A co-incidental attack on the deceased's sister, Margaret Smith, approximately three weeks later, and the subsequent discovery of missing wills kept in a toolbox bearing the appellant's palm print, formed further planks in the Crown's case.
The appellant was convicted by a jury on 17 August 2004 and sentenced to 24 years' imprisonment with an 18-year non-parole period. He appealed against conviction.
Legal Issues
- Whether the trial miscarried because of the trial judge's alleged misdirections or failure to direct the jury on various evidentiary matters
- Whether grounds of appeal could be raised on appeal where they had not been taken at trial, having regard to Rule 4 of the Criminal Appeal Rules
- Whether, taken together, the matters raised amounted to a miscarriage of justice warranting the setting aside of the conviction
Decision
The Court of Criminal Appeal noted that the appeal grounds were largely based on points that had not been taken at trial. Under Rule 4 of the Criminal Appeal Rules, leave is required to raise such grounds on appeal, and the threshold question is whether a miscarriage of justice has been shown.
Hodgson JA examined the various grounds in turn. On the DNA evidence, the court found that the expert's opinion that the DNA under the deceased's fingernails was unlikely to have resulted from the appellant rubbing her hands (as he claimed) was properly before the jury. The court also rejected a submission that the trial judge's comment on the appellant's recollection of the colour of a toolbox constituted reversible error, noting the judge had directed the jury to disregard her own views on the evidence.
A submission that Margaret Smith had positively identified the appellant as her attacker in a later assault was rejected as a mischaracterisation of her evidence. She had not identified him; she had simply not eliminated him as a suspect when challenged to do so by defence counsel.
Hodgson JA concluded that the Crown had mounted a strong circumstantial case, that the material disclosed no miscarriage of justice, and that the jury's verdict was a reasonable one. Grove J and Simpson J agreed.
Orders Made
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that grounds not raised at trial require leave under Rule 4 of the Criminal Appeal Rules, and will only succeed where a miscarriage of justice is established.
- A strong circumstantial case, built from DNA evidence, fibre comparisons, palm print evidence, and inconsistent accounts by the accused, was sufficient to sustain a murder conviction against an appeal challenge.
- Characterising a witness's evidence as an identification when the witness merely declined to exclude a suspect amounted to a misrepresentation the court was prepared to correct directly.
- Where a trial judge directs the jury to disregard any views she may have expressed about the evidence, a minor comment on a peripheral matter of credibility does not, of itself, constitute a miscarriage of justice.
- No error was established in the admission or handling of the expert DNA evidence, even where that evidence effectively contradicted the appellant's account of how his DNA came to be found on the deceased.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Rules (NSW), Rule 4
Cases:
- Papakosmas v The Queen (1999) 196 CLR 297