Basten JA at [1]; R A Hulme J at [21]; Schmidt J at [152]
Decision:
1. Leave to appeal against conviction granted, with respect to grounds 1 and 4.
2. Appeal against conviction dismissed.
3. Leave to appeal against sentence granted.
4. Appeal against sentence dismissed.
Catchwords:
CRIMINAL LAW - murder - appeal against conviction - no evidence that witness in respect of whom s 165 Evidence Act warning sought might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings - incumbent upon defence to elicit evidence to that effect - no miscarriage resulting from omission to give Murray direction - no undermining of the onus of proof by trial judge stating that jury would have expected to hear challenge to denials by witnesses that they were the shooter if there was one - not persuaded that jury should have had a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased - not persuaded that jury should have had a doubt that the applicant had the relevant mental state
CRIMINAL LAW - murder - appeal against sentence - unproductive to single out one subjective feature, age, in sentence comparison - necessary for sentence to reflect deterrence, denunciation and recognition of harm notwithstanding subjective case - sentence not manifestly excessive
[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.
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AGLC
Atai v R [2014] NSWCCA 210
Case
[2014] NSWCCA 210
Decision Date
CaseChat Overview and Summary
In this case, the applicant, Atai, appealed against his conviction for murder and his sentence. The case was heard by the High Court of Australia. The applicant was convicted of murder for shooting and killing another individual. The legal issues that the court had to address were whether there was a failure to provide a warning under s 165 of the Evidence Act, whether the trial judge's comments undermined the onus of proof, and whether the sentence was manifestly excessive.
The court found that there was no evidence to suggest that the witness in question was criminally involved in the events giving rise to the proceedings, and it was the defence's responsibility to present such evidence. The court also found that the trial judge's comments did not undermine the onus of proof and that the jury should have had no doubt that the applicant was the one who fired the gun that resulted in the death of the deceased. Furthermore, the court was not persuaded that the jury should have had a doubt that the applicant had the relevant mental state. Regarding the sentence, the court found that it was not productive to single out one subjective feature, such as the applicant's age, in sentence comparison. The court held that the sentence must reflect deterrence, denunciation, and recognition of the harm caused by the crime, notwithstanding the applicant's subjective case. The court found that the sentence was not manifestly excessive.
The High Court dismissed the applicant's appeal against conviction and sentence.