Citation: R v Rees [2001] NSWCCA 23 revised – 16/02/2001
Court: NSW Court of Criminal Appeal
Date: 16 February 2001
Judges: Sheller JA, Grove J, Kirby J
Background
The appellant was tried separately for the murder of a victim who was beaten to death in his Wollongong unit in November 1997. The victim died from blunt force head injury. Physical evidence, including a blood-stained table leg found in the appellant's garage and DNA evidence linking the appellant's shoe to the victim's blood, formed the core of a largely circumstantial Crown case.
A co-offender, Chipperfield, had been charged alongside the appellant but pleaded guilty to robbery in company at the outset of the joint proceedings. The Crown accepted that plea in full discharge of the indictment. Chipperfield was then called as a Crown witness in the appellant's trial, where he claimed no memory of the relevant events, though his earlier police interview was admitted into evidence. That interview showed Chipperfield placing himself and the appellant at the scene and attributing the fatal attack to the appellant.
The appellant's first trial ended in a hung jury. At his second trial before Bell J, the jury returned a verdict of manslaughter rather than murder. Bell J sentenced the appellant to four years and three months' imprisonment. The appellant appealed against conviction on grounds including misdirection, while the Crown appealed against the sentence as inadequate.
Legal Issues
- Whether the trial judge's directions to the jury on the test for liability for manslaughter as a participant in an extended joint criminal enterprise were correct
- Whether the jury had been properly directed on how to approach the case where it was unsatisfied as to which participant was the actual killer
- Whether leave to cross-examine Chipperfield as an unfavourable Crown witness under s 38 of the Evidence Act 1995 was properly handled
- Whether the directions concerning lies and the warning about co-offender evidence were adequate
- Whether, if the conviction was quashed, an acquittal should be entered rather than a new trial ordered
- Whether the Crown appeal on the adequacy of sentence should be upheld
Decision
The Court of Criminal Appeal allowed the appellant's appeal on the basis of misdirection. The critical misdirection concerned the test for liability for manslaughter where a participant in a joint criminal enterprise did not personally inflict the fatal blow. The trial judge had addressed this question, and trial counsel had apparently accepted the approach taken, but the Court found the direction misstated the applicable legal test on a matter of substance.
Despite recognising the unusual circumstances, including that this would result in a third trial for the appellant and that both he and Chipperfield were imminently eligible for release, the Court declined to apply Rule 4 of the Criminal Appeal Rules (which would permit a conviction to stand notwithstanding a misdirection where no substantial miscarriage of justice occurred). The Court concluded that the misdirection went to a substantive matter and that it would be inappropriate to overlook it.
The Court rejected the appellant's further submission that an acquittal should be entered instead of a new trial. It was not accepted that manslaughter was an unavailable verdict, and the Court found that the only proper outcome was to quash the conviction and order a new trial. The Crown appeal on sentence became technically otiose once the conviction was quashed, and was dismissed accordingly.
Orders Made
Appellant's appeal:
- Time for lodging appeal extended as necessary
- Appeal allowed
- Conviction and sentence quashed
- New trial ordered
Crown appeal:
- Appeal dismissed
Key Takeaways
- A misdirection on the test for manslaughter liability within an extended joint criminal enterprise constituted a substantial error warranting a new trial, even where the point was not objected to at trial and even where both offenders were days away from release eligibility.
- The Court of Criminal Appeal confirmed that Rule 4 of the Criminal Appeal Rules will not be applied to cure a misdirection on a matter of substance, regardless of the procedural inconvenience of ordering a retrial.
- Where a co-offender pleads guilty to a lesser charge and is called as a Crown witness at a separate trial, the proper handling of leave to cross-examine under s 38 of the Evidence Act 1995, along with directions on lies and co-offender evidence, are critical procedural safeguards that must be correctly managed.
- An acquittal will not be substituted for a quashed conviction simply because a lesser verdict was controversial; the Court must be satisfied that the lesser verdict was not available to the jury before making such an order.
- In joint enterprise cases involving a killing in the course of robbery, where it is unclear which participant delivered the fatal blow, the directions given to the jury on how to determine criminal responsibility require close attention to the applicable legal test.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 38
- Criminal Appeal Rules, Rule 4
Cases:
- Maxwell v The Queen (1996) 184 CLR 501
- R v Adam (1999) 47 NSWLR 267
- Graham v The Queen (1998) 195 CLR 606
- R v G.A.C. (NSWCCA, unreported, 1 April 1997)
- R v Fowler [2000] NSWCCA 142
- R v Gee [2000] NSWCCA 198
- R v Glasby [2000] NSWCCA 83
- Lee v The Queen (1998) 195 CLR 594
- Butera v DPP (Vic) (1987) 164 CLR 180
- Pemble v The Queen (1971) 124 CLR 107
- R v Tangye (1997) 92 A Crim R 546
- R v Chai [2000] NSWCCA 320
- R v Clough (1992) 28 NSWLR 396
- Wilson v The Queen (1992) 174 CLR 313
- DPP v Newbury [1977] AC 500