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Attwater v R; Maris v R

Attwater v R; Maris v R

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Case Copied 26 February 2021 76 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Attwater v R; Maris v R [2021] NSWCCA 17
Hearing dates: 14, 15, and 16 October 2020
Date of orders: 26 February 2021
Decision date: 26 February 2021
Before: Bathurst CJ; Davies J; Wilson J
Decision:
(1)   An extension of time is granted to the applicant Maris to file his application for leave to appeal against conviction and sentence;
(2)   To the extent that leave is necessary, leave is granted to the applicants to appeal against conviction;
(3)   In each case, the appeal is dismissed;
(4)   Leave is granted to the applicants to appeal against sentence;
(5)   In each case, the appeal is dismissed.

Catchwords:
CRIMINAL LAW – trial - appeal against conviction – joint trial – aggravated sexual assault – manslaughter – hinder discovery of evidence – question of error in the directions to the jury concerning the use made of evidence of lies – whether convictions not supported by the evidence
CRIMINAL LAW – appeal against sentence – asserted error in findings of fact concerning level of intoxication of complainant – asserted failure to take into account absence of planning – asserted error in assessment of seriousness of crime – question of delay as a mitigating feature – question of extra-curial punishment as mitigating feature – relevance of post offending conduct – prospects of rehabilitation – manifest excess

Legislation Cited:
Coroner’s Act 2009 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Gibson v R [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353
Ibrahim v R [2005] NSWSC 1028
Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mulato v R [2006] NSWCCA 282
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
Perrin v R [2006] NSWCCA 64
R v Attwater; R v Maris [2017] NSWSC 1710
R v Baker [2000] NSWCCA 85
R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 455; (2002) 129 A Crim R 242
R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398
Rv O’Donoghue (1988) 34 A Crim R 397
R v Smith [2017] NSWSC 900
R v Sutton (1986) 5 NSWLR 697
R v ToiaSiulai [2004] NSWCCA 152
Rend v R [2006] NSWCCA 178
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Tabbah v R [2017] NSWCCA 55
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Thewlis v R [2008] NSWCCA 176; (2008) 186 A…

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.

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Details

Case: [2021] NSWCCA 17
Decision Date: 26 February 2021

CaseChat Overview and Summary

The appellants, Attwater and Maris, were convicted in the Supreme Court of New South Wales of various serious offences, including aggravated sexual assault and manslaughter, and they appealed against both their convictions and sentences. The trial was a joint one, involving complex and graphic evidence, particularly concerning the aggravated sexual assault and the subsequent death of the victim. The appellants raised several grounds of appeal, including claims of error in the jury directions and the sufficiency of the evidence to support the convictions. Additionally, they contested the sentences imposed, arguing that the trial judge had erred in various respects, including the assessment of mitigating factors and the overall seriousness of the crimes.

The court examined whether the trial judge had correctly directed the jury on the use of evidence regarding lies told by the appellants and whether the convictions were supported by the evidence. The court considered whether any error in the jury directions could have affected the outcome of the trial. Additionally, the court assessed the appellants' claims concerning the findings of fact related to the level of intoxication of the complainant, the absence of planning in the crimes, and the assessment of the seriousness of the offences. The court also reviewed the trial judge's consideration of delay as a mitigating feature, the impact of extra-curial punishment, the relevance of post-offending conduct, and the prospects of rehabilitation.

The court found that no error had occurred in the jury directions, and the convictions were well supported by the evidence. The court upheld the convictions, noting that the evidence was sufficient to establish the crimes beyond reasonable doubt. Regarding the sentences, the court determined that while some errors were present in the trial judge's assessment, these did not amount to a manifest excess. The court concluded that the sentences were appropriate given the gravity of the offences and the need for deterrence and denunciation. The appeal against both conviction and sentence was dismissed.

The final orders of the court were that the appeals against conviction and sentence were dismissed, and the original convictions and sentences were affirmed. The appellants remained convicted and sentenced as per the original judgments of the Supreme Court of New South Wales.

Orders