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Court of Criminal Appeal 3 November 2000

R v Short [2000] NSWCCA 462 revised - 7

[2000] NSWCCA 462

Assault & violenceHomicideTheft & property
MURDER ROBBERY WITH CORPORAL VIOLENCE ASSAULT OCCASIONING ACTUAL BODILY HARM DIRECTION TO JURY UNSAFE AND UNSATISFACTORY VERDICTS MANIFESTLY INADEQUATE SENTENCE

Citation: R v Short [2000] NSWCCA 462
Court: New South Wales Court of Criminal Appeal
Date: 3 November 2000
Judge(s): Beazley JA, Grove J, Kirby J

Background

The appellant was convicted following a trial before Sully J of one count of murder, one count of robbery with corporal violence, and one count of assault occasioning actual bodily harm. All three offences occurred in the early hours of 2 March 1997 in Lithgow, with three young women as victims. There were no eyewitnesses to any of the offences.

The appellant had confessed to the murder shortly after his arrest but retracted that confession approximately one year later. His revised account was that he had been present when two friends abducted the deceased victim but was not present at the killing, and that he had only buried her body after finding her dead. He denied any involvement in the robbery or assault offences.

At first instance, the appellant received concurrent sentences: 20 years imprisonment (minimum 16 years, additional 4 years) for murder, 5 years for robbery, and 2 years for assault. The Crown appealed the sentences as inadequate, and the appellant separately appealed against all three convictions.

  • Whether the trial judge's use of the phrases "basic question" and "cardinal question" ("Do you believe him?") amounted to a misdirection by implying the jury's task was simply to choose between the Crown's case and the accused's evidence
  • Whether the trial judge erred in preventing defence counsel from addressing the jury on the possibility that forensic exhibits had been deliberately contaminated
  • Whether the convictions for robbery with corporal violence and assault occasioning actual bodily harm were unreasonable or not supported by the evidence, given the absence of direct identification evidence
  • Whether the trial judge gave sufficient weight to the appellant's mental condition in sentencing
  • Whether the three sentences should have been imposed concurrently or cumulatively
  • Whether the murder sentence was manifestly inadequate in light of the overall circumstances

Decision

On the jury direction ground, the Court of Criminal Appeal held that, while the trial judge's language was unfortunate, reading the summing-up as a whole, the jury could not have been misled into thinking their task was simply to choose between competing accounts. The directions did not deprive the appellant of a real chance of acquittal. Kirby J added that it would have been desirable for the trial judge to immediately follow the "cardinal question" with reminders that the relevant issue was whether the accused's account might be true, and that rejection of that account did not automatically establish the Crown's case beyond reasonable doubt. His Honour nonetheless agreed that the summing-up, taken as a whole, conveyed those principles.

On the contamination ground, the Court held that the trial judge correctly distinguished between accidental contamination of exhibits, which could properly be put to the jury, and deliberate contamination, which had not been the subject of any cross-examination. Because deliberate contamination had not been put to witnesses, it was not open to defence counsel to raise it in address, and no error arose.

On the sufficiency of evidence for the robbery and assault counts, the Court found that, despite the absence of direct identification evidence, the circumstantial evidence before the jury was sufficient to support an inference that the appellant was responsible for those attacks. The verdicts were neither unreasonable nor unsupportable.

On the Crown's sentence appeal, the Court accepted that the trial judge had properly considered the appellant's mental condition and had not erred in imposing concurrent sentences. However, the Court found the murder sentence of 20 years manifestly inadequate. The murder was described as motiveless and brutal, involving both severe battering and strangulation, and was committed almost simultaneously with two other violent offences. Applying the double jeopardy principle applicable to Crown sentence appeals, the Court resentenced the appellant to 24 years imprisonment with a non-parole period of 18 years.

Orders Made

  • Appeal by the appellant against conviction dismissed
  • Crown appeal against sentence allowed
  • Sentence imposed for murder quashed
  • In lieu thereof, imprisonment for 24 years with a non-parole period of 18 years, commencing 3 March 1997; earliest release date 2 March 2015
  • Sentences on counts 2 and 3 confirmed

Key Takeaways

  • A jury direction framed around whether the jury "believes" the accused is not automatically a misdirection, provided the summing-up as a whole conveys the correct standard of proof and makes clear that rejecting the accused's account does not of itself establish guilt beyond reasonable doubt.
  • Where a line of argument has not been put to witnesses in cross-examination, it is not open to defence counsel to raise that argument in closing address to the jury; the trial judge in this case correctly prevented submissions about deliberate contamination on that basis.
  • Sufficient circumstantial evidence can support convictions for violent offences even in the absence of direct identification evidence, where the jury could properly draw the relevant inference from the totality of the evidence.
  • In dismissing the Crown's concurrent sentencing ground, the Court of Criminal Appeal confirmed that imposing concurrent sentences is not necessarily an error, even where offences occur close in time.
  • Where a murder sentence fails to reflect the objective seriousness of the offending as a whole, including the context of other serious offences committed almost simultaneously, it may be found manifestly inadequate and warrant resentencing on appeal, subject to the double jeopardy principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 95, 59
- Criminal Procedure Act 1986 (NSW), s 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 48(1)(b)

Cases:
- R v E (1995) 89 A Crim R 325
- R v Towner (1991) 56 A Crim R 221
- Liberato v The Queen (1985) 159 CLR 507
- R v Tarantino (1993) 67 A Crim R 31
- R v Dwyer [1999] NSWCCA 47
- R v PAH (unreported, NSWCCA, 18 December 1998)
- R v DJK (1997) 96 A Crim R 443
- Latham v R [2000] WASCA 57