AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 16 March 2010

Grant v R

[2010] NSWCCA 44

Homicide
CRIMINAL LAW APPEAL MISDIRECTION AND NON DIRECTION EFFECT OF MISDIRECTION AND NON DIRECTION

Citation: Grant v R [2010] NSWCCA 44
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The appellant was convicted of murder following a jury trial in the District Court, after fatally stabbing his partner 37 times in the early hours of 21 July 2001. The deceased had been planning to move out of their shared home the following morning, and the Crown case was that the appellant had become possessive and resented her intention to leave. He accepted responsibility for the killing but argued at trial that the offence was manslaughter on the grounds of provocation, not murder.

The trial judge also left self-defence with the jury, though this had not been raised by the defence. The jury returned a verdict of guilty of murder on 6 May 2004, and the appellant was sentenced to 16 years imprisonment with a non-parole period of 11 and a half years.

The appellant filed his notice of appeal in June 2009, nearly five years after sentencing. He was unrepresented in the appeal and filed written submissions but did not appear in person. The Crown opposed the grant of leave to appeal on account of the substantial delay.

  • Whether leave to appeal should be granted despite a delay of approximately five years in filing the notice of appeal
  • Whether the trial judge misdirected the jury on the provocation defence, including the "ordinary person" test, the concepts of "would" versus "could", proportionality, and intent
  • Whether the trial judge misdirected the jury in relation to conflicting expert evidence
  • Whether directions regarding an alleged police verbal (an unrecorded statement attributed to the appellant) were adequate
  • Whether the verdict was unsafe or unsatisfactory having regard to inconsistencies in witness evidence
  • Whether procedural irregularities, including the admission of hearsay evidence, resulted in a miscarriage of justice

Decision

On the question of leave, the Court accepted that the delay was considerable but granted leave nonetheless. McClellan CJ at CL noted that a person convicted of murder will understandably seek legal assistance before pursuing an appeal, and that the appellant had made documented but unsuccessful attempts to obtain legal aid. The Crown identified no actual prejudice arising from the delay.

On the jury directions concerning provocation, the Court examined the written summary of directions the trial judge had prepared with the agreement of both counsel before closing addresses. McClellan CJ at CL found that the directions, read as a whole, adequately conveyed the relevant legal tests. Although there had been some confusion during the summing-up, including an acknowledgment by the trial judge that his re-directions may have added to the jury's uncertainty, this did not establish that the jury had been misdirected in a way that produced a miscarriage of justice.

On the question of the alleged police verbal, the trial judge gave specific cautionary directions under the Evidence Act 1995 in relation to the reliability of police recollections, noting the highly emotive circumstances and the appellant's alcohol consumption. The Court found no difficulty with that approach, observing that the evidence was not disputed and was largely confirmed by other material, meaning it was unlikely to have significantly disadvantaged the appellant.

Regarding the unsafe verdict ground, the Court reviewed the evidence and found that the inconsistencies identified by the appellant did not undermine the jury's verdict. Other procedural complaints, including matters relating to the availability of subpoena material and the forensic psychiatrist giving evidence without having interviewed the appellant, were assessed against the trial transcript. The Court found none of those matters amounted to a miscarriage of justice, noting that the difficulties encountered during the trial were not unusual and had been resolved without trial counsel lodging any complaint that the appellant had been denied a fair trial.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a substantial delay in filing a notice of appeal will prompt careful scrutiny of whether leave should be granted, but that documented difficulties obtaining legal aid can be a sufficient basis for granting leave where the Crown identifies no actual prejudice.
  • A trial judge's direction on provocation must be assessed as a whole, including any written directions prepared with the agreement of counsel; isolated passages or re-directions do not automatically establish reversible misdirection.
  • Cautionary directions given under the Evidence Act 1995 in relation to unrecorded oral statements attributed to an accused can satisfy the requirement for a hearsay warning, particularly where the relevant evidence is uncontested and corroborated by other material.
  • No error was established simply because a trial involved procedural difficulties, such as subpoena access issues or an expert who had not interviewed the accused, where those difficulties were resolved during the trial and defence counsel did not contend that a fair trial had been denied.
  • Where an appellant is self-represented and the written submissions are difficult to follow, the Court will nonetheless identify and assess the substantive arguments raised before determining the appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 3A(1)(b), 3B(1)(a)
- Evidence Act 1995 (NSW), s 165
- Crimes Act 1900 (NSW), s 23(2)(b)

Cases:
- R v Lawrence (1980) 1 NSWLR 122
- R v Gregory [2002] NSWCCA 199