Citation: Whitmore v The Queen; The Queen v Whitmore [2010] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 21 July 2010
Judge(s): Basten JA; Johnson J; Rothman J
Background
On Australia Day night 2007, a dispute broke out in Mount Pritchard, Sydney, after two men walking past a house provoked a reaction from a dog kept there. The confrontation escalated into a fight involving several residents, and one of the two men was fatally stabbed in the back of his right shoulder, severing an artery near his lung.
The appellant was one of the residents charged with murder. The Crown ran the case on two alternative bases: either she had personally wielded the knife, or she had participated in the attack knowing her brother had a knife and was aware he might use it to cause grievous bodily harm or death. Her co-accused was acquitted; her brother separately pleaded guilty to manslaughter. The appellant was convicted of murder and sentenced by Adams J in the Supreme Court to a non-parole period of 10 years with a balance of term of four years.
Two appeals were brought before the Court of Criminal Appeal. The appellant challenged her conviction, and the Director of Public Prosecutions separately appealed on the ground that the sentence was manifestly inadequate.
Legal Issues
- Whether the trial judge misdirected the jury by failing to correctly encapsulate the alternative basis for the murder conviction when repeating a direction during the summing up
- Whether the jury's verdict was unreasonable or unsupported by the evidence, given concerns about the reliability of a key witness
- Whether the sentence of 10 years' non-parole period was manifestly inadequate, having regard to the objective gravity of the offence, aggravating circumstances, prior convictions, and the offender's background
Decision
Jury direction: The trial judge had accurately stated the alternative basis for conviction in an earlier direction and in a written document given to the jury, but omitted a critical element when repeating the direction later. The Court held this was not a material error. The correct principle had already been explained and was contained in a written document the jury held throughout the trial. No objection was raised at the time, despite counsel having ample opportunity to do so during a carefully managed summing-up process.
Unreasonable verdict: The Court confirmed that the approach in M v The Queen (1994) 181 CLR 487 is not the only basis on which an unreasonable verdict challenge can be mounted. Where the question is which parts of a witness's evidence to accept, the role of the jury is particularly relevant. On both the primary and alternative cases, the Court found a jury could reasonably have convicted and that the verdict was supported by evidence. Reliance on the key eyewitness, Mr Duncan, was not unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
Manifest inadequacy: The Court found the trial judge had correctly approached the sentencing task. Where a case is left to a jury on alternative bases and it is unclear on which basis the jury convicted, the sentencing judge is required to find the relevant facts and follow the principles in R v Isaacs (1997) 41 NSWLR 374. On the facts as found, the appellant did not bring the knife to the scene, did not intend it to be used to cause grievous bodily harm, and did not encourage its use. Her culpability rested on her participation in the confrontation while knowing her brother had a knife.
The sentence, measured against the standard non-parole period for murder, was acknowledged as undoubtedly lenient. However, the Court held the variability of relevant factors made it impossible to characterise the leniency as so great as to require intervention. The Court also noted the sentencing landscape created by the co-offender's shorter sentence for manslaughter, though it stressed no formal parity issue arose given the different offence and circumstances.
Orders Made
- The appellant's time to seek leave to appeal was extended.
- Leave was granted to challenge the directions to the jury.
- The conviction appeal was dismissed.
- The Director's appeal against sentence was dismissed.
Key Takeaways
- An incomplete repetition of a jury direction does not constitute a material misdirection where the correct principle was stated in an earlier direction, was contained in a written document held by the jury throughout the trial, and no objection was raised at the time.
- In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that M v The Queen does not exhaust the available approaches to such a challenge; where the issue is the selective acceptance of witness evidence, the jury's role in assessing credibility carries particular weight.
- Where a murder conviction rests on an alternative basis of extended joint criminal enterprise (participation knowing a co-offender had a knife and might use it to cause grievous bodily harm), the sentencing court must find the underlying facts to the requisite standard, applying the principles in R v Isaacs, before assessing the offender's culpability.
- A sentence that is acknowledged as undoubtedly lenient relative to the standard non-parole period will not automatically attract appellate intervention; the Court must be satisfied that the leniency is so great as to demonstrate manifest inadequacy.
- Sentencing courts may give reduced weight to prior convictions where the circumstances of that earlier offending are unknown, and personal background factors, including early ejection from home, responsibilities as a young parent, bereavement, and diagnosed depression, remain relevant to the overall sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B; Table to Div 1A, Pt 4, item 1
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10
- Criminal Appeal Rules, rr 3A, 3B
Cases:
- Einfeld v Regina [2010] NSWCCA 87
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Mulato v R [2006] NSWCCA 282
- R v Harris [1961] VR 236
- R v Holton [2004] NSWCCA 214
- R v Isaacs (1997) 41 NSWLR 374
- R v Sandford (1994) 72 A Crim R 160
- R v Whitmore [2009] NSWSC 520 (the sentencing decision below)