Attwater v R; Maris v R

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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…

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Details
Case
[2021] NSWCCA 17
Decision Date

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

Orders of the court

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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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