AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 3 December 2010

Butcher v R

[2010] NSWCCA 281

Assault & violence

Citation: Butcher v R [2010] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 3 December 2010
Judge(s): Allsop P; Adams J; Howie AJ

Background

The appellant was convicted in the District Court at Sydney in November 2007, following a jury trial before O'Connor DCJ. The jury found that in September 2006, at Lithgow, the appellant solicited a man named Mark Black to murder the appellant's wife. The offence is contrary to s 26 of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment.

The prosecution case rested principally on the evidence of Mr Black and the appellant's co-offender, Debra Stevenson, with whom the appellant had been having an affair. The Crown alleged that the appellant, concerned about losing his children, properties, and money in a separation, had arranged for Ms Stevenson to approach Mr Black at a Lithgow hotel and ask him to kill the appellant's wife. The appellant then met Black in person that same evening, provided him with keys, handcuffs, gloves, and a knife, and offered him $5,000.

Mr Black declined to carry out the killing, telling the appellant he might know someone else who could. He went to police the next day. An undercover operative was subsequently introduced to Ms Stevenson. The appellant was arrested on 18 September 2006. He had been sentenced to a non-parole period of five years and six months, with a balance of term of three years and six months. The appellant pressed only his conviction appeal.

  • Whether the evidence at trial was sufficient to support the jury's verdict of guilty.
  • Whether any irregularity in the trial, including alleged bias by the trial judge, editing of the police record of interview, or unavailability of CCTV footage, gave rise to a ground of appeal.
  • Whether fresh evidence in the form of CCTV footage from Bullaburra railway station should be admitted on appeal.

Decision

The Court of Criminal Appeal, constituted by Allsop P (with Adams J and Howie AJ agreeing), dismissed the appeal in its entirety. Allsop P reviewed the evidence presented at trial, including the accounts of Mr Black, Ms Stevenson, and two other Crown witnesses. His Honour found that if the jury accepted that evidence, as it appeared to have done, the prosecution case was overwhelming.

The appellant appeared for himself and filed detailed written submissions challenging aspects of the witnesses' evidence, alleging bias by the trial judge, and raising concerns about editing of the police record of interview. Allsop P found no coherent basis in any of those submissions to suggest the trial had miscarried, and found the allegations of judicial bias to be unsubstantiated.

On the question of CCTV footage from Bullaburra railway station, the appellant sought to have the Court examine footage produced on appeal. The Court treated this as an application to receive fresh evidence. Because the Crown had investigated the matter and the footage appeared to have been available to the appellant's trial counsel, and because the appellant produced no evidence to the contrary, the Court found no proper foundation for the application and refused it.

Regarding the edited police record of interview, Allsop P noted that editing sometimes occurs to remove prejudicial material, and that the appellant had established no coherent basis for any suggestion of impropriety.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A conviction for soliciting murder under s 26 of the Crimes Act 1900 (NSW) will stand where the jury accepted substantial witness evidence, even where the alleged solicitor did not directly approach the intended killer himself.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an application to have fresh evidence examined on appeal requires a proper evidentiary foundation; an assertion that material was unavailable at trial is insufficient without supporting evidence.
  • Unsubstantiated allegations of judicial bias, made in written submissions without any particularised factual basis, will not found a ground for overturning a conviction.
  • Editing of a police record of interview does not of itself give rise to a ground of appeal; an appellant must establish a coherent basis for suggesting the editing was improper.
  • No error was established in the trial below, and the Court confirmed that the combined evidence of multiple Crown witnesses, if accepted by the jury, was capable of rendering the prosecution case overwhelming.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26 (soliciting another person to murder)

Cases:
No specific cases were cited in the portions of the judgment provided.