Amos v R - [2014] NSWCCA 302

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Amos v R [2014] NSWCCA 302
Hearing dates: 18 August 2014
Decision date: 12 December 2014
Before: Leeming JA at [1];
Adams J at [59];
Bellew J at [60]
Decision:
1. In relation to ground one, the application for leave to appeal is refused.
2. In relation to ground two, grant leave to appeal, but dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal against conviction - murder - joint trial - whether separate trial should have been ordered - application for separate trial not made - whether miscarriage of justice - cross-examination of appellant about character without leave - factual error made by counsel - whether miscarriage of justice - appeal dismissed
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 38, 104, 112
Cases Cited: Crofts v R (1996) 186 CLR 427
Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
Dia v R [2014] NSWCCA 9
Dupas v The Queen [2010] HCA 20; 241 CLR 237
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
Madbuko v R [2011] A Crim R 249
R v Button; R v Griffen [2002] NSWCCA 159; 129 A Crim R 342
R v Fernando [1999] NSWCCA 66
R v ITA [2003] NSWCCA
R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported)
R v Pham [2004] NSWCCA 190
Webb & Hay v The Queen (1994) 181 CLR 41
Category: Principal judgment
Parties: Luke Edward Amos (Applicant)
Regina (Respondent)
Representation: Counsel:
KH Averre (Applicant)
NJ Adams (Crown)
Solicitors:
Brenda Duchen (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/29704
Decision under appeal

Date of Decision:

2012-08-31 00:00:00

Before:

Hall J

File Number(s):

2010/29704

Judgment

LEEMING JA: The applicant, Luke Edward Amos, appeals against his conviction for the murder of Richard Thurman in February 2009. The Crown case was that the applicant murdered the deceased on the night of 14 February 2009 by shooting him eight times with a .22 calibre semi-automatic rifle.

The applicant, together with his co-accused, Christopher Andrew Wiggins, was indicted before Hall J on 6 March 2012. Both men pleaded not guilty to murder. Wiggins was also charged in the alternative with being an accessory after the fact to the murder of the deceased.

On 11 April 2012, following a 19-day trial before Hall J and a jury of 12, the applicant was found guilty of murder. Wiggins was found not guilty of any of the charges laid against him. The applicant was sentenced to a term of imprisonment of 28 years, with a non-parole period of 21 years.

A third person, Peter Rafter, pleaded guilty to the murder of the deceased and was sentenced to a term of imprisonment of 12 years, with a non-parole period of 9 years. Rafter gave evidence in the Crown case at trial. The applicant also gave evidence at the trial. Wiggins…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amos v R

Details

AGLC: Amos v R [2014] NSWCCA 302
Case: [2014] NSWCCA 302
Decision Date: 12 December 2014

CaseChat Overview and Summary

Amos, the appellant, was convicted of murder by a jury and sentenced to life imprisonment. He appealed against his conviction, arguing that the trial judge erred in several respects. The respondent, the Crown, opposed the appeal. The legal issues were whether the trial judge should have ordered separate trials for Amos and his co-accused, whether the absence of an application for a separate trial by Amos resulted in a miscarriage of justice, whether cross-examining Amos about his character without leave amounted to a miscarriage of justice, and whether a factual error made by counsel warranted a new trial. The court held that the trial judge did not err in not ordering separate trials, as there was no significant prejudice to Amos. The court further held that the absence of an application for a separate trial did not amount to a miscarriage of justice. The court also held that cross-examining Amos about his character without leave did not result in a miscarriage of justice. Lastly, the court held that the factual error made by counsel did not warrant a new trial, as it was not a significant error that affected the outcome of the trial. The appeal was dismissed.

Orders