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Court of Criminal Appeal 26 April 2017

Duffy v R

[2017] NSWCCA 77

Homicide
CRIMINAL PROCECURE LEAVE TO APPEAL AGAINST CONVICTION GROUNDS OF APPEAL NOT ARGUED AT TRIAL APPEAL LEAVE TO APPEAL AGAINST CONVICTION APPEAL

Citation: Duffy v R [2017] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 26 April 2017
Judges: Basten JA; Latham J; Campbell J

Background

The applicant was tried in 2014 for the murder of a woman who was strangled with a belt at a rural property. The jury acquitted him of murder but convicted him of manslaughter. He was also acquitted of break, enter and steal, having already pleaded guilty to a related stealing charge.

The prosecution's primary case was that the applicant himself placed the belt around the victim's neck. The alternative case was that, even if he did not do so personally, he participated in a joint criminal enterprise with the principal offender (who was primarily responsible for the killing). The jury's verdict did not disclose which of those two pathways they accepted.

At sentencing in 2015, the applicant received a non-parole period of eight years for manslaughter. He then sought leave to appeal against both the conviction and the sentence.

  • Whether the trial judge misdirected the jury on what constitutes "participation" in a joint criminal enterprise, in particular whether mere presence during the offence was sufficient
  • Whether the jury could properly convict the applicant on circumstantial evidence alone, after rejecting the direct evidence of the principal offender
  • Whether the sentencing judge erred in making factual findings about the applicant's role in the killing

Decision

Ground 1 (jury directions on joint criminal enterprise): Because no objection had been raised at trial, the applicant needed leave under r 4 of the Criminal Appeal Rules to argue this ground on appeal. The Court examined the trial judge's summing up and found that, read as a whole, the directions adequately conveyed that both an agreement and the applicant's participation in that agreement were required to be proven beyond reasonable doubt. The directions did not suggest that mere presence was sufficient to establish participation. Leave was refused.

Ground 3 (verdict unreasonable or direction to jury): The applicant argued that once the jury rejected the principal offender's direct evidence, no sufficient evidence remained to support a conviction. The Court clarified that the proper question on this ground was not whether the trial judge should have withdrawn the matter from the jury, but whether the verdict itself was unreasonable or unsupported by the evidence under s 6 of the Criminal Appeal Act 1912 (NSW). The Court found there was sufficient evidence, including circumstantial evidence of the applicant's presence, conduct, and post-offence behaviour, to support the verdict. Leave on both limbs of ground 3 was refused.

Sentence appeal (ground 4): The applicant challenged the sentencing judge's factual finding about his participation in the killing itself, as distinct from his admitted post-offence conduct. The Court found no error in that finding. The sentencing judge was entitled to draw inferences from the evidence and was not required to adopt the most lenient available view of the facts. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave under r 4 of the Criminal Appeal Rules to rely on grounds 1 and 3 (challenge to jury directions) refused
  • Leave to appeal against conviction under s 5(1)(b) of the Criminal Appeal Act, on the basis that the verdict was unreasonable or not supported by evidence, refused
  • Ground 2 not pressed; application for leave to appeal against conviction refused
  • Leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • A conviction for manslaughter under joint criminal enterprise principles requires proof beyond reasonable doubt of both an agreement and the accused's participation in it; the Court of Criminal Appeal confirmed that mere presence at the scene is not sufficient.
  • Where no objection is taken to jury directions at trial, a party seeking to challenge those directions on appeal must obtain leave under r 4 of the Criminal Appeal Rules, and will need to demonstrate that the directions caused a miscarriage of justice.
  • The test for whether a matter should be left to a jury, as confirmed in Doney v The Queen (1990) 171 CLR 207, is whether the evidence, taken at its highest, is capable of supporting a verdict of guilty; withdrawal is only warranted where the evidence is so defective it cannot do so.
  • In dismissing the sentence appeal, the Court affirmed that a sentencing judge is not bound to accept the most favourable version of the facts for an offender; inferences adverse to the offender may be drawn from the evidence, provided they are open on that evidence.
  • No error was established in the trial judge's directions when read as a whole, illustrating that appellate courts assess directions in their entirety rather than scrutinising individual phrases in isolation.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules (NSW), r 4

Cases:
- Doney v The Queen (1990) 171 CLR 207
- M v The Queen (1994) 181 CLR 487
- McAuliffe v The Queen (1995) 183 CLR 108
- Miller v The Queen [2016] HCA 30; 90 ALJR 918
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Storey [1998] 1 VR 359
- Sandford (1994) 72 A Crim R 160
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54