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Court of Criminal Appeal 22 December 2014

Leung v R

[2014] NSWCCA 336

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE MANSLAUGHTER

Citation: Leung v R [2014] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 22 December 2014
Judges: Hoeben CJ at CL; Fullerton J; Adamson J

Background

The appellant was convicted by a jury in November 2012 of the manslaughter of his domestic partner, who died on 7 April 2007 at the terrace house the two men shared in Alexandria. The deceased, aged 71, was found at the bottom of a staircase with fatal head injuries. The appellant, aged 46, was discovered in a hysterical state cradling the deceased's head when police and ambulance officers arrived.

The Crown case was that the appellant had unlawfully caused the deceased's death, relying on evidence of a deteriorating relationship, the nature of the injuries, and circumstances at the scene including the presence of a juicer nearby. The defence maintained the deceased had died as a result of an accidental fall on the stairs.

The case had a lengthy procedural history. Two earlier trials had both ended in directed verdicts of acquittal, each of which was subsequently quashed by the Court of Criminal Appeal. The third trial resulted in the jury returning a guilty verdict, which led to a sentence of eight years' imprisonment with a non-parole period of four years and six months. The appellant then sought leave to appeal against both conviction and sentence.

  • Whether the conviction for manslaughter was unreasonable or could not be supported having regard to the evidence, on the basis that it was not open to the jury to be satisfied beyond reasonable doubt that the Crown had excluded the hypothesis that the deceased died as a result of an accidental fall
  • Whether the sentence of eight years' imprisonment was manifestly excessive

Decision

All three judges allowed the conviction appeal, though they reached that conclusion by somewhat different routes. The central issue was whether the evidence was sufficient to exclude, beyond reasonable doubt, the hypothesis that the deceased died from injuries sustained in an accidental fall rather than from any unlawful act by the appellant.

Hoeben CJ at CL identified the key evidentiary problem as lying in the Crown's reliance on the presence of blood on the juicer, which was treated by the Crown expert as consistent with the juicer having been used to strike the deceased. His Honour found that the evidence did not establish, to the required standard, that the blood actually belonged to the deceased, and that this gap was significant because the juicer formed the linchpin of the Crown's theory of a deliberate assault. Without that foundation, the hypothesis that the deceased's fatal injuries resulted from an accidental fall could not be excluded.

Fullerton J agreed that the verdict was unreasonable. Her Honour found that the Crown had failed to prove that the blood on the juicer was that of the deceased, and that this unproved assumption had likely infected the jury's reasoning in a way that was not corrected at trial. Adamson J also concluded the verdict could not stand, finding that the fatal injuries were consistent with the force of impact from a fall on a wooden floor, and that the Crown had not excluded this non-fanciful innocent hypothesis to the requisite standard. Her Honour noted that the timing of the various injuries was not capable of being established with sufficient precision to demonstrate they coincided with any alleged assault rather than a fall.

Because the conviction appeal succeeded, the Court did not proceed to determine the sentence appeal.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • Verdict of acquittal entered

Key Takeaways

  • A conviction will be unreasonable within the meaning of the relevant appellate test where the Crown evidence, taken as a whole, fails to exclude a non-fanciful hypothesis consistent with the accused's innocence beyond reasonable doubt.
  • The Court of Criminal Appeal confirmed that it is insufficient for the Crown merely to prove that one particular innocent explanation (such as a complete fall down the stairs) is unlikely; the Crown must exclude all reasonably available innocent hypotheses.
  • Where a critical forensic link in the Crown case rests on an unproved assumption, such as the ownership of blood found on a potential weapon, that gap can render an otherwise circumstantial case insufficient to support a conviction.
  • Circumstantial evidence of a deteriorating relationship, an argument, and the accused's presence at the scene does not, without more, permit guilt to be inferred where the accused's conduct after death is equally consistent with grief and shock as with consciousness of guilt.
  • The right to silence and the presumption of innocence together impose a burden on the Crown to close evidentiary gaps; the burden does not shift to an accused to explain how a death occurred.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b) (manslaughter)

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- M v R [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
- R v Leung (No 3) [2009] NSWSC 450
- R v Leung [2011] NSWSC 785
- R v Leung [2013] NSWSC 259
- R v Loveridge [2014] NSWCCA 120
- R v PL [2009] NSWCCA 256
- R v PL [2012] NSWCCA 31
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Stephens v R [2009] NSWCCA 240