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Court of Criminal Appeal 15 March 2013

HUDD v Regina

[2013] NSWCCA 57

Assault & violenceHomicideTheft & propertyFirearms & weapons
CRIMINAL LAW CONVICTION APPEAL FELONY MURDER APPLICATION OF PROVISO WHETHER JURY VERDICT UNREASONABLE SENTENCE APPEAL

Citation: HUDD v Regina [2013] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 15 March 2013
Judge(s): Hoeben JA; Adams J; Beech-Jones J

Background

The appellant and a co-accused were convicted following a joint trial of murder, two counts of armed robbery, malicious wounding, and assault occasioning actual bodily harm. The charges arose from an armed robbery at a Matraville electronics store on Christmas Eve 2002. The Crown's case was one of felony murder under s 18 of the Crimes Act 1900 (NSW), meaning it did not need to prove an intention to kill, only that the fatal act occurred during or immediately after the commission of the armed robbery.

During the robbery, the store's manager freed himself from cable ties, retrieved a machete, and gave chase. He caught up with the appellant approximately 20 metres from the store, outside a delicatessen, and a struggle ensued. The appellant retrieved a pistol from his bag and shot the manager in the stomach. The manager died in hospital some hours later. The appellant was restrained by bystanders until police arrived.

At trial, the appellant maintained he was an innocent bystander who became caught up in a struggle with a fleeing man who dropped a gun. The jury rejected that account entirely and returned guilty verdicts on all counts. The appellant sought leave to appeal his conviction and sentence.

  • Whether the trial judge was correct to reject a "no case" submission on the murder charge based on felony murder.
  • Whether the trial judge erred in failing to leave to the jury the factual question of whether the shooting occurred "during or immediately after" the armed robbery, as required by s 18 of the Crimes Act 1900 (NSW).
  • Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied to cure that error, so that no substantial miscarriage of justice resulted.
  • Whether the jury's verdict of murder was unreasonable in light of the evidence.
  • Whether evidence from two bystander witnesses and gunshot residue evidence should have been excluded.
  • On sentence: whether the sentencing judge correctly characterised the facts, whether the appellant's terminal illness warranted a reduction, whether the totality principle was correctly applied, and whether special circumstances should have been found.

Decision

Conviction grounds argued by counsel

The Court found no error in the trial judge's refusal of the "no case" submission. There was sufficient evidence to go to the jury on felony murder.

However, the Court accepted that the trial judge did err by withdrawing from the jury the factual question of whether the shooting occurred "during or immediately after" the robbery. That question, encompassing an element of the offence, was one the jury was constitutionally required to decide. The trial judge effectively directed the jury that the temporal requirement was satisfied as a matter of law, rather than leaving it as a question of fact.

The Court then considered whether the proviso applied. Applying Weiss v R [2005] HCA 81, the Court held that the evidence admitted at trial proved beyond reasonable doubt that the appellant's guilt on the murder count was established. The robbery had just concluded, the victim pursued the appellant immediately and caught him a short distance away, and the shooting followed very shortly after that first physical contact. On that evidence, the killing occurred "immediately after" the robbery. No substantial miscarriage of justice resulted from the misdirection. The appeal on these grounds was dismissed.

Grounds argued personally by the appellant

The appellant was too ill to appear and his senior counsel did not make submissions on the evidentiary grounds the appellant wished to argue himself. The Court considered the appellant's written submissions regarding the bystander evidence and gunshot residue evidence, but found no basis to uphold those grounds.

Sentence appeal

The Court found the sentencing judge's characterisation of the facts was correct. The appellant's terminal illness was acknowledged as a relevant factor, but the Court held that established sentencing principle did not permit the sentence to be reduced on that basis in the circumstances. The totality principle and special circumstances grounds were also rejected. The sentence appeal was dismissed, though the Court recorded its support for a separate clemency application the appellant had made to the Government.

Orders Made

  • Leave to appeal granted in relation to the factual issues in the conviction appeal and in respect of the sentence appeal.
  • Appeal dismissed.
  • The Court noted support for the appellant's separate application for executive clemency, given the serious nature of his illness.

Key Takeaways

  • Under s 18 of the Crimes Act 1900 (NSW), the temporal question of whether a killing occurred "during or immediately after" the commission of a felony is a question of fact for the jury, not a matter the trial judge may resolve as a question of law and withdraw from the jury's consideration.

  • The Court of Criminal Appeal confirmed that the phrase "immediately after" carries its ordinary English meaning: something happening without any delay or lapse of time, straightaway or forthwith. It does not permit temporal expansion merely because a causal connection exists between the foundational offence and the killing.

  • Where a trial judge's error removes an element of the offence from the jury's deliberation, that error may still be cured by the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), provided the appellate court is satisfied from the whole record that no substantial miscarriage of justice occurred and that the evidence proved guilt beyond reasonable doubt.

  • Applying Weiss v R [2005] HCA 81, the jury's guilty verdict remains part of the appellate court's assessment of the whole record, though its weight must be carefully considered where the verdict was returned after a misdirection on a factual element of the offence.

  • A convicted offender's terminal illness may be noted as a relevant sentencing consideration, but the Court of Criminal Appeal found it did not, on established principle, justify reducing the sentence in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Crimes (Sentencing Procedure) Act 1999, s 44

Cases
- Barton v Regina [2009] NSWCCA 164
- Caristo v R [2011] NSWCCA 7
- Conway v The Queen [2002] HCA 2; 209 CLR 203
- Cooper v The Queen [2012] HCA 50; 87 ALJR 32
- Evans v The Queen [2007] HCA 27; 235 CLR 521
- Gassy v The Queen [2008] HCA 18; 236 CLR 293
- Pearce v R [1998] HCA 57; 194 CLR 610
- Quartermaine v The Queen [1980] HCA 29; 143 CLR 595
- R v Attard (NSWCCA, unreported, 20 April 1993)
- R v Austin (1996) 87 A Crim R 570
- R v Bailey (1988) 35 A Crim R 458
- R v Burke [1983] 2 NSWLR 93
- R v Hammond (2000) 118 A Crim R 66
- R v Hitchins; R v Elliot [1983] 3 NSWLR 318
- R v Leith [2000] 1 Qd R 660
- R v Spathis; R v Patsalis [2001] NSWCCA 476
- Royall v R [1991] HCA 27; (1991) 172 CLR 378
- Weiss v R [2005] HCA 81; 224 CLR 300