Citation: [2013] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 6 May 2013
Judges: Bathurst CJ (principal judgment); Hall J and Button J (agreeing)
Background
In 1936, a storekeeper named William Henry Lavers disappeared from his property near Grenfell, NSW. Blood and tyre tracks near his store suggested foul play, but his body was never found. A decade later, an itinerant shearer, Frederick Lincoln McDermott, was arrested, tried, and convicted of Lavers' murder by a jury in February 1947. He was sentenced to death, though that sentence was later commuted to life imprisonment.
Two appeals to the Court of Criminal Appeal and a refused High Court leave application followed, all unsuccessful. In 1951, a Royal Commission inquired into the conviction. The Commission found a strong probability that the jury had been misled by incorrect evidence and recommended McDermott's release. He was freed in January 1952 and died in August 1977.
In 2004, human remains found on a farm approximately 12 miles north of Grenfell were identified as those of Lavers. A subsequent coronial inquiry returned an open finding on cause of death but characterised McDermott's conviction as a gross miscarriage of justice. That finding prompted a petition to the Attorney General on McDermott's behalf by his second cousin, Ms Betty Sheelah. On 26 November 2010, the Attorney General referred the whole case to the Court of Criminal Appeal under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001.
Legal Issues
- Whether the Court had jurisdiction under the Crimes (Appeal and Review) Act 2001 to hear and determine a reference concerning a person who had died before the reference was made.
- Whether McDermott's conviction for murder was a miscarriage of justice in light of all the evidence, including fresh evidence arising from the 2004 discovery of Lavers' remains.
Decision
Jurisdiction despite death
The Court accepted the parties' joint submission that jurisdiction existed notwithstanding McDermott's death. Bathurst CJ reasoned that s 76 of the Act expressly permits a petition to be made by another person on behalf of the convicted person, with no textual limitation excluding petitions on behalf of deceased persons. Further, a reference under s 77(1)(b) requires no action by the convicted person: it is the Minister who refers the case, and s 86 requires the Court to deal with it as if an appeal had been lodged. The Court noted that the remedial and beneficial purpose of the review provisions supported a construction permitting posthumous references, and that denying jurisdiction would produce an outcome inconsistent with the legislative intent to correct miscarriages of justice. Analogous authority from other jurisdictions supported the same conclusion.
Miscarriage of justice
The Court examined the whole of the evidence, as required on a s 77 reference, without being constrained by previous appellate treatment. The Crown case at trial had rested on three principal pillars: identification evidence linking McDermott to a vehicle seen near the scene; an alleged confession to a third party (relayed through two witnesses); and the falsity of McDermott's alibi claim that he had been shearing near Forbes on the day of the disappearance.
The fresh evidence substantially dismantled each element. Expert forensic evidence about the location and condition of Lavers' remains was inconsistent with the alleged confession in material respects: the body was not found at the old Grenfell sheep yards and had not been dismembered with an axe, as the confession described. Tyre track evidence linked the crime to a vehicle type that McDermott had no apparent connection to, and new evidence indicated that a car answering the description of another person's vehicle had been sighted on the relevant route that morning. Bathurst CJ concluded that, had all the available evidence been before the jury, the only possible verdict would have been acquittal. The conviction therefore represented a significant miscarriage of justice.
Orders Made
- The conviction of Frederick Lincoln McDermott was quashed.
- A verdict of acquittal was entered in its place.
Key Takeaways
- The Court of Criminal Appeal confirmed that it retains jurisdiction under the Crimes (Appeal and Review) Act 2001 to hear a ministerial reference and quash a conviction even where the convicted person has died before the reference is made.
- Under s 76 of the Act, a petition may be brought by another person on behalf of a convicted person, and nothing in the text confines this to living convicted persons.
- A reference under s 77(1)(b) requires no step to be taken by the convicted person: the obligation to refer rests with the Minister, and the Court's duty under s 86 is to consider the whole case afresh, uninhibited by the way it was previously dealt with.
- Fresh forensic evidence that fundamentally contradicts the account contained in an alleged confession can be sufficient to establish that no jury, properly instructed, could have returned a verdict of guilty.
- Posthumous quashing of a conviction and entry of a verdict of acquittal are remedies available within the Court's jurisdiction under the Act, giving effect to the legislation's purpose of correcting miscarriages of justice.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 76, 77, 86
- Criminal Appeal Act 1912 (NSW), ss 5, 6, Pt VI
- Crimes Act 1900 (NSW), ss 474B, 474C, 475
- Evidence Act 1995 (NSW)
- Federal Court of Australia Act 1976 (Cth), s 24
Cases
- McDermott v R [1948] HCA 23; (1948) 76 CLR 501
- R v McDermott (No 1) (1947) 47 SR (NSW) 379
- R v McDermott (No 2) (1947) 47 SR (NSW) 407
- Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
- Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
- R v Doyle [2001] NSWCCA 252; (2001) 123 A Crim R 151
- Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
- Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
- Re Application of Pearson [1999] NSWSC 143; (1999) 46 NSWLR 148
- Re Ross [2007] VSC 572; (2007) 19 VR 272
- R v Abou-Chabake (2004) 149 A Crim R 417
- R v Johns [1999] NSWCCA 206; (1999) 110 A Crim R 149
- R v Maguire [1992] QB 936
- R v Rowe [1955] 1 QB 573
- R v Jefferies [1969] 1 QB 120
- R v Rimon [2003] VSCA 136; (2003) 6 VR 553
- Sen v The Queen (1991) 30 FCR 173
- Managing Director NSW TAFE Commission v Fines (1993) 32 NSWLR 385
- Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290
- R v Pederick (Court of Criminal Appeal, unreported, 21 May 1997)