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AW v The King

AW v The King

Case [2025] NSWCCA 47 2 April 2025

Appeal

Joint Criminal Enterprise

Miscarriage of Justice

Unreasonable Verdict

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AW v R [2025] NSWCCA 47
Hearing dates: 4 December 2024
Date of orders: 2 April 2025
Decision date: 02 April 2025
Before: Stern JA at [1];
Fagan J at [96]; and
Ierace J at [143].
Decision:
(1) Leave to appeal on grounds 1 and 3 granted but leave to appeal on ground 2 is refused.
(2) Appeal dismissed.

Catchwords:
CRIME - appeals - appeal against conviction – application of proviso - joint criminal enterprise – directions to jury as to elements of offence – Crown conceded that trial judge misdirected the jury – miscarriage of justice established – whether no substantial miscarriage of justice actually occurred – where there was no substantial miscarriage of justice and the proviso should be applied
CRIME - appeals - appeal against conviction - unreasonable verdict – if manslaughter was excluded as having been the appropriate verdict – where evidence before the jury amply supported a verdict of murder

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act 1995 (NSW), s 66A

Cases Cited:
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Likiardopoulos v The Queen [2012] HCA 37
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
R v LN; R v AW (No 10) [2017] NSWSC 1387
R v LN; R v AW (No. 11) [2017] NSWSC 1430
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Xu v R [2023] NSWCCA 93

Texts Cited:
Nil.

Category: Principal judgment
Parties: AW (applicant)
Crown (respondent)
Representation:
Counsel:

D. Dalton SC; T. Weller-Wong (applicant)
G. Wright SC; W. Liu (respondent)

Solicitors:
Just Defence Lawyers (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2014/274229
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify the victim’s half-sister is prohibited.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 April 2017, LN and AW were convicted of the murder of Joseph (or Joey), who died, aged 3…

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 AW v The King

Details

AGLC: AW v The King [2025] NSWCCA 47
Case: [2025] NSWCCA 47
Decision Date: 02 April 2025

CaseChat Overview and Summary

In the matter of AW v The King, the defendant appealed against his conviction for murder, arguing that the trial judge misdirected the jury regarding the elements of the offence. The appeal was considered by the High Court of Australia, which was tasked with determining whether the trial judge's misdirection constituted a substantial miscarriage of justice and whether the proviso applied to the defendant's appeal. The court was also required to decide whether, if the proviso did apply, the verdict was unreasonable given the evidence that supported a murder conviction.

The central legal issues were whether the trial judge's misdirection amounted to a substantial miscarriage of justice and, if so, whether the proviso should be applied. Additionally, the court had to consider whether, in light of the proviso, the verdict was unreasonable given the evidence supported a conviction for murder. The Crown conceded that the trial judge misdirected the jury, but argued that no substantial miscarriage of justice occurred because the evidence supported a murder conviction.

The High Court found that, while the trial judge's misdirection did constitute a substantial miscarriage of justice, the proviso applied because the evidence supported a murder conviction. The jury had sufficient evidence to exclude manslaughter as an appropriate verdict. The court concluded that the verdict was not unreasonable given the evidence and, therefore, the appeal was dismissed.

No further orders were made by the court.

Orders