Bidner v The King - [2024] NSWCCA 204

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bidner v R [2024] NSWCCA 204
Hearing dates: 18 September 2024
Date of orders: 11 November 2024
Decision date: 11 November 2024
Before: Harrison CJ at CL at [1];
Davies J at [88];
Rigg J at [89]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – murder – sentencing judge found intention to kill established beyond reasonable doubt – whether sentencing judge erred – whether sentencing judge should have found intention to inflict serious bodily harm – intention to kill open on the evidence
CRIME – appeals – appeal against sentence – Crown submission at trial that the deceased was run down unexpectedly and without warning – submission accepted by sentencing judge – sentencing judge inferred from submission that the deceased was not aware of the imminent attack – where agreed facts silent on what exactly occurred – evidence of other people present at the location of the murder – no evidence of conversation or anyone shouting a warning – evidence of the deceased not facing the vehicle at the time of collision – finding open on the evidence
CRIME – appeals – appeal against sentence – background of disadvantage – drug use – no finding of causal connection – sentencing judge found the applicant’s account of dysfunctional upbringing unsupported or contradicted by other evidence – finding open on the evidence

Legislation Cited:
Crimes (Sentencing Proceedings) Act 1999 (NSW) ss 3A, 21A, 25D

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Davies v R [2019] VSCA 66
Lawrence v R [2023] NSWCCA 110
Massaquoi v R [2024] NSWCCA 125
Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
Newman v R [2021] NSWCCA 101
Ocek v R [2023] NSWCCA 308
R v Bidner (Sentence) [2023] NSWSC 880
R v O’Donoghue (1988) 34 A Crim R 397

Category: Principal judgment
Parties: Adam Andrew Bidner (Applicant)
Crown (Respondent)
Representation:
Counsel:
B Neild SC (Applicant)
E Nicholson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/202106
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2023] NSWSC 880

Date of Decision:

27 July 2023 (Sentence)

Before:

Wilson J

HEADNOTE

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

On 27 June 2023, Adam Bidner was sentenced by Her Honour Wilson J (the sentencing judge) in the Supreme Court of New South Wales for the murder of Shane Mears following a plea of guilty on the second day of his trial. Her Honour sentenced Mr Bidner to a term of imprisonment of 24 years and 8 months with a non-parole period of 18 years.

On the afternoon of 5 July 2020, Mr Bidner and Mr Mears were present at the Waste Management Area Centre at Cessnock, foraging for scrap metal. Mr Mears was accompanied…

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 Bidner v The King

Details

AGLC: Bidner v The King [2024] NSWCCA 204
Case: [2024] NSWCCA 204
Decision Date: 11 November 2024

CaseChat Overview and Summary

In the case of Bidner v The King, the appellant sought to appeal against his sentence for the crime of murder. The appellant was convicted of murdering the deceased by deliberately running him over with a vehicle. The appeal focused on the sentencing process, particularly the findings made by the sentencing judge regarding the appellant's intention and the circumstances of the offence. The High Court of Australia was tasked with reviewing the decision of the lower court to determine whether the sentencing judge erred in their findings.

The primary legal issue before the Court was whether the sentencing judge correctly assessed the appellant's intention at the time of the offence. The Court needed to determine if the sentencing judge should have found that the appellant intended to inflict serious bodily harm rather than intending to kill. Additionally, the Court considered whether the sentencing judge should have accepted that the deceased was unaware of the imminent attack, as inferred from the Crown's submission at the trial. This was based on the lack of evidence regarding what exactly transpired at the scene of the murder and the evidence from other people present who did not hear any warnings or conversations prior to the incident.

The Court found that the evidence presented was such that reasonable minds could differ on the findings of fact. The sentencing judge's determination that the appellant intended to kill was supported by the evidence, but it was also plausible that the appellant intended to inflict serious bodily harm. The Court emphasised that the sentencing judge did not err in their assessment of the appellant's background and upbringing, as the judge found the appellant's account unsupported or contradicted by other evidence. Given the open nature of the findings, the Court held that the appeal against sentence should be dismissed.

The Court upheld the original sentence imposed by the lower court, affirming that the sentencing judge did not make any errors in their assessment of the evidence or in the application of the law. The Court's decision underscored the importance of the sentencing judge's discretion and the open nature of factual findings in criminal sentencing.

Orders