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Court of Criminal Appeal 16 July 2010

Park v R

[2010] NSWCCA 151

Also reported as 202 A Crim R 133
Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW

Citation: Park v R [2010] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 16 July 2010
Judge(s): McClellan CJ at CL; James J; Rothman J

Background

The appellant was the husband of the complainant, who had decided she wanted a divorce. On 3 January 2007, after the couple had agreed to separate, the appellant returned to the matrimonial unit in Parramatta, locked the complainant in the bedroom, and poured paint thinner over her, the bedding, and himself, while demanding she choose between being stabbed or burned to death.

The complainant managed to escape before any fire was set. The appellant was tried in the District Court before Knox DCJ and a jury, and was convicted on two counts: attempting to set fire to the complainant with intent to murder her, and maliciously damaging a room by fire with intent to cause bodily harm.

The appellant was sentenced to 18 years imprisonment (with a 12-year non-parole period) for the attempted murder count. He appealed both conviction and sentence.

  • Whether the indictment was defective because it charged "attempt to set fire... with intent to murder" rather than expressly charging attempted murder, and therefore failed to disclose an offence known to law
  • Whether the sentencing judge failed to properly account for the appellant's mental condition at the time of the offence
  • Whether the sentencing judge failed to give proper weight to other mitigating factors

Decision

Ground 1: Validity of the indictment

The appellant argued that the indictment was so poorly worded that it did not, as a matter of law, charge attempted murder. The court examined whether "attempt to set fire... with intent to murder" properly disclosed the offence of attempted murder, including whether the act alleged (attempting to set fire) was sufficiently proximate to the completed offence of murder.

McClellan CJ at CL held that the indictment, properly construed, alleged both the act (the attempt to set fire) and the requisite intent to murder by that act if completed. That construction was the only available one, and it satisfied all the elements of attempted murder. Rothman J added that, even if the wording were technically deficient, the jury verdict in a fair trial where no procedural unfairness occurred would cure any such defect. Rothman J also observed that the objection had not been raised at trial, that the appellant clearly understood he was being tried for attempted murder, and that the Crown could have amended the indictment at the time had any deficiency been raised.

Grounds 2, 3 and 4: Sentence appeal

The court granted leave to appeal against sentence but dismissed the appeal. The court found no error in the way the sentencing judge approached the appellant's mental condition or the other mitigating factors raised. No further elaboration on the sentence reasoning was provided in the portions of the judgment available.

Orders Made

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

Key Takeaways

  • An indictment charging "attempt to set fire... with intent to murder" is properly construed as charging attempted murder where the only available reading is that the act, if completed, was intended to bring about the victim's death.
  • Where a technically defective indictment is not challenged at trial, where the accused understood the charge, and where no procedural unfairness resulted, the jury's guilty verdict can cure any such procedural defect.
  • A conviction for attempted murder requires an act immediately and sufficiently connected to the completed offence, not merely a preparatory or remotely connected act; in this case, pouring accelerant over the complainant while threatening to burn her was found to satisfy that proximity requirement.
  • Failing to raise a deficiency in an indictment at trial, when the Crown could have sought amendment under ss 20 and 21 of the Criminal Procedure Act 1986, carries significant consequences for any attempt to rely on that deficiency on appeal.
  • In dismissing the sentence appeal, the Court of Criminal Appeal found no error in the sentencing judge's treatment of the appellant's mental condition or other mitigating circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 20, 21
- Criminal Appeal Act 1912 (NSW)
- Offences Against the Person Act 1861 (UK)

Cases
- Doja v R [2009] NSWCCA 303
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263
- John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
- DPP v Stonehouse [1978] AC 55
- R v Eagleton (1855) 169 ER 766
- Penney v The Queen (1995) 72 ALJR 1316
- Alister & Ors v The Queen [1984] HCA 85; (1984) 154 CLR 404
- McGhee v The Queen (1995) 183 CLR 82
- Engert v R (1995) 84 A Crim R 67
- R v White (1910) 2 KB 124
- R v Whybrow (1951) 35 Cr App R 141
- Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303