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Court of Criminal Appeal 1 March 2013

Ward v R

[2013] NSWCCA 46

HomicideTraffic & driving
CRIMINAL LAW MURDER DIRECTION ON STANDARD OF PROOF DIRECTION ON INTOXICATION AND INTENT DIRECTION ON PROVOCATION WHETHER OFFENCE WAS MID RANGE

Citation: Ward v R [2013] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 1 March 2013
Judges: McClellan CJ at CL, Latham J, Adamson J

Background

The applicant was convicted by a jury of the murder of a young man in St Leonards in the early hours of the morning. The applicant had been drinking alcohol since the afternoon and had also consumed cannabis. Without a licence, and without the owner's knowledge, she took a vehicle and drove it into a nearby laneway, travelling the wrong way down a one-way street. A confrontation developed between the applicant and a group of young men, including the deceased and his brother.

After a brief altercation, the applicant returned to the vehicle and deliberately drove it at the deceased, fatally striking him. CCTV footage recorded much of the sequence of events and formed a significant part of the Crown case.

The applicant was sentenced to a non-parole period of 18 years and 9 months, with an additional term of 6 years and 3 months. She sought leave to appeal both her conviction and her sentence. Because she filed her appeal application well outside the permitted timeframe (approximately 18 months late), she also required an extension of time.

  • Whether leave to extend time to file the appeal should be granted, given the significant delay
  • Whether the trial judge misdirected the jury on the standard of proof
  • Whether the directions on the effect of the applicant's rejected plea of guilty to manslaughter were confusing or incorrect
  • Whether the trial judge erred by failing to direct on accident
  • Whether the directions on intoxication and intent were erroneous
  • Whether the directions on provocation were erroneous
  • Whether the directions on substantial impairment by abnormality of mind were erroneous
  • Whether the trial miscarried due to incorrectly admitted or rejected evidence, or due to incompetent representation
  • Whether the sentence was excessive, including questions about the applicable standard non-parole period following Muldrock v The Queen, the relevance of the applicant's intoxication to culpability, and whether special circumstances warranted a different non-parole period

Decision

Extension of time and conviction grounds: The Court acknowledged the tension between the applicant's interest in pursuing a meritorious appeal and the public interest in finality of litigation, including the impact on those who have suffered loss through homicide. On the merits, the Court refused leave to appeal the conviction on all grounds except Ground 6 (provocation). On that ground, leave was granted but the appeal was dismissed. The remaining conviction grounds, including alleged misdirection on standard of proof, rejected plea, intoxication, substantial impairment, evidentiary issues, and incompetent representation, were found not to demonstrate error warranting intervention.

Provocation: Although the Court granted leave to argue the provocation ground, it ultimately found no error in the trial judge's directions sufficient to disturb the conviction. The facts, including the relatively minor nature of the initial confrontation and the applicant's highly aggressive response, did not support a conclusion that the jury had been misled or that the directions were materially deficient.

Sentence: The Court considered the post-Muldrock approach to the standard non-parole period for murder, which requires courts to treat that benchmark as a guidepost rather than a mandatory reference point. The sentencing judge had properly assessed the objective seriousness of the offence and the applicant's personal circumstances. The Court accepted that intoxication could be relevant to culpability in sentencing but found the sentencing judge had not erred in his treatment of that factor. The Court rejected the submission that special circumstances existed to justify a reduced non-parole period, noting that a lengthy parole period was already built into the sentence structure and that a lack of prior criminal history alone is unlikely to warrant that finding.

Manifest excess: The Court found the sentence was within the range available to the sentencing judge for a murder conviction carrying a maximum of life imprisonment. No error in principle was identified, and the appeal against sentence was dismissed.

Orders Made

  • Leave to appeal conviction refused, except on Ground 6 (provocation)
  • Leave granted on Ground 6, but that ground dismissed
  • Leave to appeal sentence granted, but the sentence appeal dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that a significant unexplained delay in filing (here, approximately 18 months) requires genuine justification, and that the public interest in finality of litigation, particularly in homicide matters, weighs heavily against granting extensions as a matter of course.
  • Under the approach mandated by Muldrock v The Queen, the standard non-parole period for murder operates as a guidepost in sentencing rather than a fixed benchmark, and courts must assess the full range of objective and subjective circumstances in each case.
  • Intoxication may be relevant to an offender's culpability at the sentencing stage, but its weight depends on the particular facts and does not automatically reduce the severity of the sentence.
  • A lack of prior criminal history does not, by itself, constitute special circumstances sufficient to justify a reduction in the non-parole period below the statutory ratio, particularly where a lengthy parole period is already structurally inevitable.
  • Appellate intervention in sentence is available only where error in principle is demonstrated; the Court of Criminal Appeal will not substitute its own view of the appropriate sentence merely because it might have reached a different result.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)
- Criminal Appeal Rules (NSW), r 4

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- House v The King (1936) 55 CLR 499
- Green v The Queen (1996-97) 191 CLR 334
- Green v R (1971) 126 CLR 28
- Libke v The Queen (2007) 230 CLR 559
- Papakosmos v R [1999] HCA 37; 196 CLR 297
- R v Camplin [1978] AC 705
- Ng v R [2011] NSWCCA 227
- Edwards v R [2009] NSWCCA 199
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Chai [2002] NSWCCA 512
- R v Cheatham [2002] NSWCCA 360
- R v Croft [1981] 1 NSWLR 126
- R v Bellchambers [2008] NSWCCA 235
- Aslett v R [2012] NSWCCA 235
- Beldon v R [2012] NSWCCA 194
- Collier v R [2012] NSWCCA 213
- Darwiche & Ors v R [2011] NSWCCA 62
- FP v R [2012] NSWCCA 182
- R v Margach [2007] VSCA 110