Arrowsmith v The Queen - [1994] FCA 1050

ROSS WILLIAM ARROWSMITH v. THE QUEEN
No. ACTG40 of 1994
FED No. 1050/94
Number of pages - 19
Criminal Law - Murder - Sentencing
(1994) 55 FCR 130

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
BLACK CJ, GALLOP AND MATHEWS JJ

CATCHWORDS

Criminal Law - murder - provocation - withdrawal by trial judge of provocation from the jury - ruling was correct on the evidence
Murder - provocation - scope of statutory provision in ACT - "ordinary person" test
Murder - power of the jury to return alternative verdict of manslaughter - trial judge's direction where no evidence to justify verdict of manslaughter
Sentencing - severity - objective seriousness of the crime - extraordinary subjective circumstances of the accused - extreme remorse
Sentencing - relevance of accused's state of health - disabilities which render imprisonment more burdensome

Crimes Act 1900, s.13

Lee Chun Chuen v. The Queen (1963) AC 220
The Queen v. Blake (Court of Appeal QLD, unreported, 31 March 1994)
Stingel v. The Queen (1990) 171 CLR 312
The Queen v. Brown and Morley (1968) SASR 468
Gammage v. The Queen (1969) 122 CLR 444
Tajber v. The Queen (1986) 13 FCR 524
The Queen v. Birks (1990) 48 A Crim R 385
The Queen v. Knowles (1984) VR 751
R. v. Smith (1986-87) 44 SASR 587

HEARING

CANBERRA, 3 and 4 November 1994
#DATE 23:12:1994

Counsel for the Appellant: Mr S. Tilmouth QC and Mr S. Pilkinton

Solicitor for the Appellant: Porter Pilkinton Bradfield

Counsel for the Respondent: Mr K. Crispin QC and Mr K. Hempenstall

Solicitor for the Respondent: ACT Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

(1) The appeal against conviction be dismissed.

(2) The appeal against sentence imposed by the Supreme Court of the Australian Capital Territory be allowed.

(3) The said sentence be set aside and in lieu thereof the Court sentences the appellant to imprisonment for 14 years and fixes a non-parole period of six years and six months.

(4) The said sentence and non-parole period to commence on 30 May 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BLACK CJ, GALLOP AND MATHEWS JJ On the 23rd May 1994 the appellant was indicted before a jury in the Supreme Court of the Australian Capital Territory on a charge that on the 22nd July 1993 he murdered Leanne Ford. On the 30th May he was found guilty of that charge. On 1 June 1994 he was sentenced by Miles CJ to 16 years imprisonment with a non-parole period of nine years. He now appeals from both conviction and sentence.

The body of the deceased was found late in the morning of the 23rd July 1993 wrapped in a sleeping bag on a bed in the main bedroom at her home at Narrabundah. A post mortem examination revealed extensive head and facial injuries with a fractured skull. Lying beside the bed, but still…

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 Arrowsmith v The Queen

Details

AGLC: Arrowsmith, R.W. v. The Queen [1994] FCA 1050 ((1994) 55 FCR 130)
Case: [1994] FCA 1050
Decision Date: 23 DECEMBER 1994

CaseChat Overview and Summary

In the case of Arrowsmith v The Queen, the appellant was convicted of murder by a jury in the Supreme Court of the Australian Capital Territory. The appeal against conviction and the sentence imposed was brought before the court. The central issues for determination were whether the trial judge correctly withdrew the issue of provocation from the jury, the applicability of the "ordinary person" test in the context of statutory provisions in the ACT, and the appropriateness of the jury's power to return an alternative verdict of manslaughter when no evidence justified such a verdict. Additionally, the court examined the severity of the sentencing in light of the appellant's extraordinary subjective circumstances, including his extreme remorse, and the relevance of his health conditions that rendered imprisonment more burdensome.

The court found that the trial judge's decision to withdraw provocation from the jury was correct, as the evidence did not support a reasonable possibility that the appellant acted in provocation. The "ordinary person" test was applied to determine if the appellant's actions were provoked, and it was held that the evidence did not meet this standard. Furthermore, the court concluded that the trial judge's direction to the jury regarding the power to return an alternative verdict of manslaughter was proper, as there was no evidence to justify such a verdict. The severity of the sentencing was also reviewed, taking into account the appellant's extreme remorse and his health conditions, which made imprisonment more burdensome.

The court dismissed the appeal against conviction, confirming the correctness of the trial judge's decisions. However, it allowed the appeal against the sentence, setting aside the sentence imposed by the Supreme Court and substituting it with a sentence of imprisonment for 14 years with a non-parole period of six years and six months. The new sentence was to commence on 30 May 1994. The court's ruling highlighted the importance of considering both objective and subjective factors in sentencing, including the accused's remorse and health conditions.

Orders

Orders of the court

THE COURT ORDERS THAT:

(1) The appeal against conviction be dismissed.

(2) The appeal against sentence imposed by the Supreme Court of the Australian Capital Territory be allowed.

(3) The said sentence be set aside and in lieu thereof the Court sentences the appellant to imprisonment for 14 years and fixes a non-parole period of six years and six months.

(4) The said sentence and non-parole period to commence on 30 May 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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