Citation: Field v R [2015] NSWCCA 332
Court: Court of Criminal Appeal, New South Wales
Date: 23 December 2015
Judges: Macfarlan JA at [1]; Johnson J at [103]; R A Hulme J at [107]
Background
The applicant was convicted of the manslaughter of a man who died after being punched on the left side of his jaw in a hotel carpark at Kingscliff, New South Wales, on 15 July 2012. The applicant accepted at trial that he had punched the deceased immediately before the deceased collapsed, but disputed that his blow was the cause of death. His defence was that another man involved in the altercation, Mr Shaun Fathers, had earlier delivered a punch that caused the fatal injury.
The jury acquitted the applicant of murder but returned a verdict of guilty of manslaughter on 9 December 2014. On 17 December 2014, the sentencing judge imposed a term of 10 years imprisonment with a non-parole period of 7 years and 6 months.
The applicant sought leave to appeal against both conviction and sentence. On conviction, he argued the jury's verdict was unreasonable and unsupported by the evidence. On sentence, he argued the term was manifestly excessive, noting the protean nature of manslaughter as an offence.
Legal Issues
- Whether the jury's verdict of manslaughter was unreasonable or could not be supported having regard to the whole of the evidence (s 6(1) of the Criminal Appeal Act 1912 (NSW))
- Whether inconsistencies between witness accounts at trial were sufficient to give rise to a reasonable doubt that the applicant, rather than another person, delivered the fatal blow
- Whether the sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months was manifestly excessive
- Whether the sentencing judge erred in her fact-finding or in declining to find special circumstances warranting a reduction in the proportion of the non-parole period
Decision
Conviction appeal
The court rejected the submission that the verdict was unreasonable. Although the witnesses gave accounts that contained some inconsistencies, notably regarding the precise location of the blow and whether Mr Fathers' punches had connected with the deceased, none of those inconsistencies cast doubt on the central question of who delivered the fatal punch. No witness saw the deceased struck by any person other than the applicant.
The court emphasised the advantage the jury held in seeing and hearing witnesses give their evidence, and applied the well-established principle that an appellate court must give appropriate weight to that advantage when assessing whether a verdict is unreasonable. One witness stated clearly that she had "definitely not" seen anyone other than the applicant strike the deceased that evening.
Sentence appeal
The court found that the sentencing judge's factual findings were open on the evidence and identified no error in the exercise of her sentencing discretion. The applicant had a favourable subjective case, including that he was a first-time custodial offender, but the absence of remorse was also noted. The sentencing judge treated general deterrence as a dominating factor, characterising the offence as unprovoked, uncontrolled lethal violence in a public place.
Applying the standard from Markarian v The Queen, the question for the Court of Criminal Appeal was whether the sentence was unreasonable or plainly unjust, not whether a different sentence might have been imposed. Having regard to the objective seriousness of the offence, the maximum penalty prescribed by Parliament, and the community interest in deterring public acts of aggression with fatal consequences, the court was not persuaded the sentence met that threshold.
Orders Made
- Leave to appeal against conviction and sentence granted.
- Both appeals dismissed.
Key Takeaways
- Inconsistencies between witness accounts do not automatically render a jury verdict unreasonable; the appellate court examines whether those inconsistencies give rise to doubt on the central factual question at issue.
- Where no witness saw the deceased struck by anyone other than the applicant, and one witness positively excluded that possibility, the evidentiary foundation for the conviction remained intact despite peripheral inconsistencies in other evidence.
- The Court of Criminal Appeal confirmed that juries hold a material advantage in assessing witness credibility, and appellate courts must give proper weight to that advantage when reviewing verdicts under s 6(1) of the Criminal Appeal Act 1912 (NSW).
- A favourable subjective case, including no prior custodial history, does not override the need for a sentence to reflect the objective gravity of the offence and serve general deterrence, particularly for lethal public violence.
- No error arises from declining to find special circumstances where the matters relied upon in support of that submission were already taken into account in fixing the head sentence; double counting those factors would itself have been an error.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)-(h)
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), s 128
Cases
- BCM v The Queen [2013] HCA 48; 88 ALJR 101
- Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- M v The Queen [1994] HCA 63; 181 CLR 487
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mohamed v R [2008] NSWCCA 45
- Morris v The Queen [1987] HCA 50; 163 CLR 454
- R v Fidow [2004] NSWCCA 172
- R v Hillier [2007] HCA 13; 228 CLR 618
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Sio v R [2015] NSWCCA 42
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278