AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 20 October 2023

Conway v R

[2023] NSWCCA 265

Assault & violenceHomicide
CRIME APPEAL AGAINST CONVICTION MURDER SINGLE FATAL KNIFE WOUND TO THE ABDOMEN

Citation: Conway v R [2023] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 20 October 2023
Judges: Basten AJA; Cavanagh J; Dhanji J

Background

The appellant was convicted of murdering Christopher Ward at a residential unit in Broadmeadow in March 2021. The fatal injury was a single knife wound to the abdomen, which caused internal bleeding. It was not disputed that the appellant inflicted the wound.

The prosecution's principal witness, a neighbour named Renee Lee, gave evidence that the appellant had produced two knives and invited the deceased to a "muck around" play fight. When the deceased declined, the appellant lunged across a coffee table and stabbed him. The appellant gave evidence in his own defence, claiming he acted in self-defence after the deceased advanced towards him holding a knife.

After conviction in November 2022, the appellant was sentenced to 16 years' imprisonment. He sought leave to appeal against the conviction on two grounds.

  • Whether the trial judge's refusal to discharge the jury gave rise to a miscarriage of justice, following three prejudicial statements made by the Crown's key witness during cross-examination that suggested the appellant had a propensity for violence and had committed robbery.
  • Whether the jury's verdict of guilty was unreasonable and unsupportable on the evidence.

Decision

Ground 1: Refusal to discharge the jury

During cross-examination, Renee Lee made three passing references that touched on the appellant's character, including suggestions of a propensity for violence and a prior robbery. Defence counsel applied to discharge the jury on each occasion. The trial judge refused, instead giving directions to the jury.

The Court held that challenging a refusal to discharge the jury requires establishing a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW). Importantly, the Court confirmed that the appellant did not need to show the miscarriage was merely "substantial." The three statements, however, were assessed in context. They arose during cross-examination in response to questions asking the witness to explain her own conduct, and the Court found no intention to malign the appellant should be drawn from them. The trial judge's directions were adequate to address any potential prejudice.

Viewed objectively, the Court concluded that the three references were brief and passing, and that the trial judge's directions were sufficient to ensure the jury was not improperly influenced. The refusal to discharge the jury did not deprive the appellant of a fair trial, and the statements could not realistically have affected the verdict.

Ground 2: Unreasonable verdict

On an unreasonable verdict ground, the Court's task is to form its own view, by independent assessment of the evidence, on whether it entertains a reasonable doubt as to guilt. If it does, it must then consider whether the jury, having heard the evidence, could properly have resolved that doubt.

The Court entertained no reasonable doubt as to the prosecution case. It found Lee's evidence was neither inherently implausible nor inconsistent with objective facts. The appellant's evidence did not, viewed objectively, raise a reasonable doubt about the truth and reliability of Lee's account. Both Cavanagh J and Dhanji J agreed with Basten AJA's reasons.

Orders Made

• The appellant should have leave to appeal, but the appeal must be dismissed.

Key Takeaways

  • In dismissing both grounds of appeal, the Court confirmed that prejudicial remarks made by a Crown witness during cross-examination do not automatically require a jury discharge, particularly where the remarks are brief, arise incidentally from questions about the witness's own conduct, and are addressed by adequate judicial directions.
  • A miscarriage of justice under the third limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) must be established to challenge a refusal to discharge a jury, but the appellant is not required to show only a "substantial" miscarriage.
  • Under the unreasonable verdict ground, the appellate court must form an independent view of the evidence and consider whether it entertains a reasonable doubt as to guilt, applying M v The Queen (1994) 181 CLR 487.
  • Contextual assessment matters when evaluating the prejudicial effect of witness remarks: the Court examined not only the remarks themselves but also the overall course of the witness's evidence and the trial as a whole.
  • Leave to appeal against conviction is appropriate where the charge is serious and the sentence is substantial, even where the grounds are not limited to questions of law alone.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
- Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Ilievski v R; Nolan v R (No 2) [2023] NSWCCA 248
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Miller v R [2015] NSWCCA 206; 252 A Crim R 486
- Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6