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Court of Criminal Appeal 7 May 2012

Buckley v R; R v Buckley

[2012] NSWCCA 85

HomicideTraffic & driving
CRIMINAL LAW APPEAL CONVICTION JALKH V R [2009] NSWCCA 139 RR V R [2011] NSWCCA 235 APPLIED APPEAL

Citation: Buckley v R; R v Buckley [2012] NSWCCA 85
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2012
Judge(s): Basten JA; Blanch J; Beech-Jones J

Background

In the early hours of 25 July 2009, the offender navigated a six-metre aluminium fishing boat across Bate Bay, east of Cronulla, while under the influence of alcohol. The boat capsized. The offender swam ashore and raised the alarm, but his two companions drowned before rescuers found them.

The offender was tried before a judge and jury in the District Court and convicted on two counts of aggravated dangerous navigation occasioning death, under the Crimes Act 1900 (NSW). The charges alleged he was navigating with a prescribed concentration of alcohol in his blood. North DCJ sentenced him to two years and six months' imprisonment on each count, with the sentences partially accumulated to produce a minimum custodial period of 18 months.

Two separate appeals followed. The offender sought leave to appeal against his convictions, arguing the trial judge's summing-up was deficient. The Director of Public Prosecutions separately appealed the sentences as manifestly inadequate.

  • Whether the trial judge erred in summing up by failing to identify the issues in dispute, relate the evidence to those issues, and present a collected resume of the relevant evidence (rather than a chronological, witness-by-witness recitation)
  • Whether leave to appeal against conviction should be granted where no objection to the summing-up had been taken at trial
  • Whether the sentences imposed were manifestly inadequate
  • Whether the trial judge had failed to adequately assess the offender's moral culpability
  • Whether the trial judge erred in assessing the objective seriousness of the offences

Decision

Appeal against conviction: The Court treated the challenge to the conviction as an application for leave to appeal, noting it was at best doubtful that the grounds involved questions of law alone. The offender's grounds focused on the trial judge's alleged failure to present evidence by reference to the issues in dispute, drawing on principles from R v Zorad (1990) 19 NSWLR 91. The Court reviewed those principles as qualified by s 161 of the Criminal Procedure Act 1986 (NSW), which relieves a judge from summarising evidence where a summary is not necessary, and by subsequent authority including El-Jalkh v R [2009] NSWCCA 139 and RR v R [2011] NSWCCA 235. Those later cases confirmed that the obligation to relate evidence to issues is confined to matters actually in dispute.

Critically, the offender's legal representatives had raised no objection to the summing-up at trial. The Court refused leave on that basis, applying r 4 of the Criminal Appeal Rules. Absent an objection at trial, leave to raise such grounds on appeal was declined.

Appeal against sentence: The Director contended the sentences were manifestly inadequate and that the trial judge had understated the offender's moral culpability and the objective seriousness of the offences. The Court applied the guideline principles from R v Whyte [2002] NSWCCA 343 and considered the comparable facts in R v Reynolds; R v Small [2010] NSWSC 691. It found that while the sentence was undoubtedly lenient, the trial judge had heard all the evidence, including the offender's own testimony, and was well placed to assess moral culpability. The level of alcohol, though serious, did not equate to the more extreme conduct in Reynolds and Small, and several aggravating features present in that case were absent here. The Court found no manifest error and declined to intervene.

Orders Made

  • Leave refused to the offender under r 4 of the Criminal Appeal Rules to raise grounds challenging the summing-up, where no objection had been taken at trial
  • Leave to appeal against conviction refused
  • The Director's appeal against the inadequacy of the sentences dismissed

Key Takeaways

  • A trial judge's obligation to identify issues and relate evidence to those issues is limited, following El-Jalkh and RR v R, to matters that were actually in dispute at trial; the broader obligation stated in R v Zorad has been significantly qualified by both legislation and subsequent case law.
  • Under s 161 of the Criminal Procedure Act 1986 (NSW), a judge need not summarise evidence at all where, in all the circumstances, a summary is not necessary.
  • Failing to object to a summing-up at trial will ordinarily defeat any subsequent application for leave to appeal against conviction on that basis, as the Court of Criminal Appeal will apply r 4 of the Criminal Appeal Rules.
  • In dismissing the Director's sentence appeal, the Court affirmed that a comparative assessment of moral culpability requires attention both to aggravating features that are present and to those that are absent; a sentence may be lenient without crossing the threshold of manifest error.
  • Sufficient deference is owed to a sentencing judge who has heard all the evidence firsthand: that advantage is a legitimate factor weighing against appellate intervention absent demonstrated error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 405AA
- Criminal Appeal Act 1912 (NSW), ss 5, 5D
- Criminal Procedure Act 1986 (NSW), s 161

Cases:
- R v Zorad (1990) 19 NSWLR 91
- R v Tillott (NSWCCA, 8 April 1991, unreported)
- El-Jalkh v R [2009] NSWCCA 139
- RR v R [2011] NSWCCA 235
- R v Reynolds; R v Small [2010] NSWSC 691
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Jurisic (1998) 45 NSWLR 209
- Picken v Regina [2007] NSWCCA 319