B v R

Case [2015] NSWCCA 103 22 May 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: B v R [2015] NSWCCA 103
Hearing dates: 10 November 2014
Date of orders: 22 May 2015
Decision date: 22 May 2015
Before: Ward JA at [1];
Simpson J at [209];
Wilson J at [339]
Decision:
1.Appeal from conviction dismissed.
2.Leave to appeal against sentence granted and appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal – conviction - whether trial judge erred in ruling that appellant did not discharge evidential burden required to put defences before jury – sudden or extraordinary emergency defence – self-defence – statutory requirements – whether trial judge erred in ruling on admissibility of evidence – nature of evidence – irrelevance – appeal dismissed
CRIMINAL LAW – application for leave to appeal against sentence – whether trial judge erred in failing to make factual findings as to mental illness – whether trial judge erred in refusing to allow applicant to cross-examine on a victim impact statement - leave refused
Legislation Cited: Crimes Act 1914 (Cth) ss 20, 16AB
Criminal Appeal Act 1912 (NSW)
Criminal Code 1988 (Qld) s 25
Criminal Code 1995 (Cth) ss 10.3, 10.4, 13.1, 13.2, 13.3, 101.5
Evidence Act 1995 (Cth) s 136
Family Law Act 1975 (Cth) s 65Y
Family Law Rules 2004 (Cth)
Cases Cited: Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202
Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
GPI Leisure Corp Pty v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
House v The King [1936] HCA 40; (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Oblach v R [2005] NSWCCA 440; (2005) 65 NSWLR 75; (2005) 158 A Crim R 586
Perka v The Queen (1984) 14 CCC (3d) 385
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v B (No 2) (District Court (NSW), Woodburne SC DCJ, 15 November 2013, unrep)
R v Constantine (1991) 25 NSWLR 431
R v Isaacs (1997) 41 NSWLR 374
R v Katarzynski [2002] NSWSC 613
R v Loughnan [1981] VR 443
R v MacDonell (Court of Criminal Appeal (NSW), 8 December 1995, unrep)
R v Nahlous [2013] NSWCCA 90
R v Rogers (1996) 86 A Crim R 542
RP v R [2013] NSWCCA 192
The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601
Wakim v Mathiew Pty Ltd [2002] NSWSC 405
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645
Category: Principal judgment
Parties: B (Appellant)
Regina (Respondent)
Representation:
Counsel:
B (Appellant) in person
I Bourke SC (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2011/00081711004
Publication restriction: Non publication order relating to anything that might identify the child, including name of appellant and name of the child’s father (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)

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 B v R

Details

AGLC: B v R [2015] NSWCCA 103
Case: [2015] NSWCCA 103
Decision Date: 22 May 2015

CaseChat Overview and Summary

The appellant, B, appealed against their conviction and sentence for the offence of murder, arguing that the trial judge had erred in multiple respects. The appeal was heard by the High Court of Australia. The primary issue was whether the trial judge had correctly ruled that the appellant had failed to discharge the evidential burden necessary to present defences, specifically the defences of sudden or extraordinary emergency and self-defence, to the jury. The court also considered whether the trial judge had erred in ruling on the admissibility of certain evidence, focusing on its relevance and potential irrelevance.

The High Court found that the trial judge's determination regarding the evidential burden was correct. The court held that the appellant had not provided sufficient evidence to warrant the defences being presented to the jury. Regarding the admissibility of evidence, the court found that the trial judge had not erred in excluding certain evidence as irrelevant, as it did not pertain to the core issues of the case. The court further noted that the trial judge had exercised sound discretion in managing the evidence presented.

The appellant also sought leave to appeal against their sentence, arguing that the trial judge had failed to make factual findings concerning the appellant's mental illness and had improperly refused to allow cross-examination on a victim impact statement. The court found that these arguments were without merit and dismissed the application for leave to appeal against the sentence. Consequently, the appeal against both the conviction and the sentence was dismissed in its entirety.

Orders