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Court of Criminal Appeal 20 October 2011

Carney v R; Cambey v R

[2011] NSWCCA 223

Also reported as 217 A Crim R 201
Homicide
CRIMINAL LAW MURDER ALTERNATIVE VERDICT OF MANSLAUGHTER JOINT TRIAL MISCARRIAGE OF JUSTICE MURDER

Citation: Carney v R; Cambey v R [2011] NSWCCA 223
Court: Court of Criminal Appeal, New South Wales
Date: 20 October 2011
Judges: Whealy JA, James J, Hoeben J

Background

Two men (referred to here as Carney and Cambey) were convicted of the murder of a man at his unit in Cartwright in January 2006. The deceased, who had a history of selling cannabis, was repeatedly struck about the head with a metal bar and kicked or stomped. He died later that day from a closed head injury and skull fracture. A third man involved in the assault was tried separately and acquitted.

The Crown's case rested substantially on witness evidence that each appellant had made confessional statements about their involvement. There was no forensic evidence identifying the assailants. The central defence at trial was that neither Carney nor Cambey had been inside the deceased's unit when the injuries were inflicted. Neither man gave evidence.

The jury convicted both men of murder. Carney was sentenced to 22 years imprisonment with a non-parole period of 16 years and 6 months; Cambey received 18 years with a non-parole period of 14 years and 6 months. Both men appealed against their convictions.

  • Whether the trial judge erred in failing to leave manslaughter as an alternative verdict to the jury, even though neither the Crown nor defence counsel asked for it to be left
  • Whether that failure constituted an error of law under the Criminal Appeal Act 1912
  • Whether Criminal Appeal Rules Rule 4 (which requires leave to appeal where no objection was taken at trial) should stand in the way of the appeals succeeding
  • Whether the proviso in section 6 of the Criminal Appeal Act 1912 applied, such that no substantial miscarriage of justice had actually occurred despite the error

Decision

The Court found that a verdict of manslaughter was open on the evidence at trial. Under the longstanding principle in Pemble v R (1971), a trial judge must leave an available alternative verdict even where neither party requests it. The failure to do so amounted to an error of law, regardless of the fact that the defence strategy had been focused entirely on contesting presence at the scene rather than on intent.

On the question of Rule 4, the Court held that the rule did not prevent the appeals from succeeding. Although the appellants had not raised manslaughter at trial, this was understandable given their defence that they were not present at all. The Court was satisfied that a real chance existed that, had the jury been directed on manslaughter, it may have returned a verdict of guilty of manslaughter rather than murder.

The Court then considered the proviso in section 6 of the Criminal Appeal Act 1912, which allows a conviction to stand even where an error of law is established, provided no substantial miscarriage of justice has actually occurred. Drawing on the High Court's post-Weiss v The Queen jurisprudence, including Gassy v R and AK v State of Western Australia, the Court emphasised that the nature of the error itself must be taken into account. Because the jury was never directed on manslaughter and never had the opportunity to consider it, each appellant lost a real chance of being convicted of the lesser offence rather than murder. The proviso therefore did not apply.

The Court was careful to note that nothing in its reasoning was critical of the trial judge, who had conducted the trial precisely as the parties had asked.

Orders Made

  • Each appeal against conviction is allowed.
  • Each appellant is to have a new trial.

Key Takeaways

  • A trial judge in a criminal trial must leave an available alternative verdict, such as manslaughter, to the jury even where neither the prosecution nor defence has requested it. This duty, established in Pemble v R, was reaffirmed here.
  • Where the failure to leave an alternative verdict constitutes an error of law, the conviction must be set aside under section 6 of the Criminal Appeal Act 1912, unless the Crown satisfies the court that the proviso applies.
  • The Court of Criminal Appeal confirmed that, in applying the proviso, the nature of the error itself must be assessed. An error that deprives an accused of a real chance of a lesser verdict can amount to a substantial miscarriage of justice, even if the evidence of guilt on the more serious charge was strong.
  • Criminal Appeal Rules Rule 4 does not automatically bar an appeal where trial counsel failed to raise an issue, particularly where the omission was explicable by the nature of the defence run at trial.
  • Under the post-Weiss framework, the "negative stipulation" from Weiss (that the court must be satisfied that no substantial miscarriage has actually occurred) is not itself a complete and sufficient test. Courts must examine whether the error may have affected the outcome, including by depriving the accused of a pathway to a lesser verdict.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 4, 6
- Criminal Appeal Rules, r 4

Cases
- Pemble v R (1971) 124 CLR 107
- Weiss v The Queen [2005] HCA 81; 224 CLR 300
- Gilbert v R [2000] HCA 15; 201 CLR 414
- Gillard v R [2003] HCA 64; 219 CLR 1
- Gassy v R [2008] HCA 18; 236 CLR 293
- AK v State of Western Australia [2008] HCA 8; 232 CLR 438
- Cesan v R [2008] HCA 52; 236 CLR 358
- Darkan v R [2006] HCA 34; 227 CLR 373
- R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
- R v Abusafiah (1991) 24 NSWLR 531
- R v Wilson (2005) 62 NSWLR 346
- Kessing v R [2008] NSWCCA 310; 73 NSWLR 22
- Vickers v R [2006] NSWCCA 60; 160 A Crim R 195
- Darwiche v R [2011] NSWCCA 62
- Carlton v R [2008] NSWCCA 244; 189 A Crim R 332
- DJS v R [2010] NSWCCA 200
- RWB v R [2010] NSWCCA 147
- Green v R (1971) 126 CLR 28