Citation: Sumpton v R [2016] NSWCCA 162
Court: Court of Criminal Appeal, New South Wales
Date: 10 August 2016
Judges: Hoeben CJ at CL, Hall J, Bellew J
Background
The applicant was convicted by a jury in the Supreme Court at Grafton of murdering a woman he had met for the first time the day before her death, and of two counts of intentionally damaging property by fire. The victim was found inside her South Grafton home after emergency services responded to a house fire. A post-mortem examination revealed she had died from multiple stab wounds and had sustained injuries consistent with blunt force trauma. Forensic evidence indicated the fire had been deliberately set at three separate points of origin, including on or under the victim's body.
The Crown case rested on three interlocking components: a confession made by the applicant to a Corrective Services officer during an intake screening interview, a second confession made to another person, and a substantial body of circumstantial evidence. The applicant was present at the scene when emergency services arrived and had been behaving in a manner that drew police suspicion. He was arrested six days after the fire.
The applicant received a total effective sentence of 20 years and 6 months before becoming eligible for parole, with a balance of term expiring in 2041. He sought leave to appeal both his convictions and his sentence.
Legal Issues
- Whether the trial judge's directions on circumstantial evidence failed to identify the essential facts the Crown needed to prove beyond reasonable doubt, and whether this was a "links in a chain" case requiring such specific directions
- Whether the verdicts were unreasonable because alibi-like evidence put forward through prosecution witnesses had not been negatived beyond reasonable doubt
- Whether tendency evidence was wrongly admitted and, if so, whether its admission caused a miscarriage of justice
- Whether the trial judge failed to adequately direct the jury that even if it disbelieved the defence witnesses, the Crown still bore the onus of proof
- Whether the failure to tender a medical report at the sentencing hearing constituted a miscarriage of justice
- Whether the sentencing judge erred in his assessment of objective seriousness, including in his treatment of the applicant's conduct towards the victim's body as an aggravating factor, and in taking into account harm to the deceased's family
Decision
Conviction appeal
The Court of Criminal Appeal dismissed all four grounds of the conviction appeal. On the circumstantial evidence direction, the court found that the Crown case had not been run at trial as a "links in a chain" case, where each essential intermediate fact must independently be proved beyond reasonable doubt. Because the trial had been conducted on a different basis, the applicant was bound by that forensic choice and could not raise the argument for the first time on appeal.
On the alibi ground, the court found the evidence in question did not raise a true alibi requiring specific directions that it be negatived beyond reasonable doubt. The tendency evidence ground was similarly rejected; the court was not satisfied that the tendency evidence had been wrongly admitted, and in any event found no miscarriage of justice arose from its admission. The final conviction ground, concerning directions about the confessions of witnesses Hayes and Sommers, was also rejected. The court concluded the trial judge's directions were adequate and that the jury would have understood it was not required to accept the Crown case merely because it disbelieved the defence.
Sentence appeal
Leave to appeal against sentence was granted but the appeal was dismissed. The court found that the failure to tender a medical report did not establish a miscarriage of justice. On the question of objective seriousness, no error was identified in the sentencing judge's approach.
The court addressed the applicant's argument that treating his conduct towards the victim's body solely as evidence of guilt, rather than as an aggravating factor, was an error. Bellew J concluded that the absence of emotional, vengeful, or ritualistic motivation did not prevent that conduct from aggravating the offending. The court also declined to revisit concessions properly made by trial counsel, including the concession that harm to the deceased's family was an aspect of harm done to the community and a legitimate sentencing consideration.
Orders Made
- Leave to appeal against conviction: refused (conviction appeal dismissed)
- Leave to appeal against sentence: granted
- Sentence appeal: dismissed
Key Takeaways
- An applicant who runs a trial on a particular forensic basis is generally bound by that approach on appeal; the Court of Criminal Appeal rejected an argument about circumstantial evidence directions because the trial had not been conducted as a "links in a chain" case and the point had not been raised below.
- Tendency evidence under ss 97 and 101 of the Evidence Act 1995 (NSW) will not automatically give rise to a miscarriage of justice; the court must be satisfied both that the evidence was wrongly admitted and that its admission produced a real injustice.
- In dismissing the sentence appeal, the court confirmed that the treatment of a victim's body can constitute an aggravating factor regardless of whether the conduct was emotionally, vengefully, or ritualistically motivated.
- Concessions made by counsel at the sentencing hearing bind the applicant on appeal; it is not open to the applicant to re-agitate matters that were properly conceded below.
- The harm done to a victim's immediate family is a recognised aspect of harm to the community for sentencing purposes under the Crimes (Sentencing Procedure) Act 1999 (NSW), consistent with the principle that all unlawful takings of human life harm the broader community.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 101 (tendency evidence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 28
Cases
- Shepherd v R [1990] HCA 56; 170 CLR 573
- M v R [1994] HCA 63; 181 CLR 487
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Betts v R [2015] NSWCCA 39
- Panetta v R [2016] NSWCCA 85
- Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89
- Pym v R [2014] NSWCCA 182
- Mulato v R [2006] NSWCCA 282
- Bayram v R [2012] VSCA 6
- Keane v R [2011] VSCA 156
- Romero v R [2011] VSCA 45
- R v Halloun [2014] NSWSC 1705
- R v Do (No 4) [2015] NSWSC 512
- R v Pluis [2015] NSWSC 320
- R v Sumpton [2014] NSWSC 1432
- R v Sumpton (No 4) [2015] NSWSC 684