Brown v R - [2006] NSWCCA 395

CITATION: Scott Raymond Brown v Regina [2006] NSWCCA 395

HEARING DATE(S): 7 September 2006

JUDGMENT DATE:
12 December 2006

JUDGMENT OF: Mason P at 1; Sully J at 2; Latham J at 68

DECISION: Appeal against convictions dismissed; Leave granted to appeal against sentences passed at first instance; Appeal against sentences dismissed

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED: M v The Queen (1994) 181 CLR 487
Hui Chi-ming v The Queen [1992] 1 AC 34
R v Britten and Eger (1988) 36 A Crim R 48
R v Vandine [1970] 1 NSWR 252
R v Spathis and Patsalis (2001) NSWCCA 476
R v Mills, unreported, NSWCCA 3/4/95

PARTIES: Scott Raymond Brown
Regina

FILE NUMBER(S): CCA 2005/2034

COUNSEL: W. G. Dawe QC - Crown
In person - Appellant

SOLICITORS: S. Kavanagh - Crown
In person - Appellant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/40

LOWER COURT JUDICIAL OFFICER: Newman J

LOWER COURT DATE OF DECISION: 18 February 2005

2005/2034
MASON P
SULLY J
LATHAM J

12 December 2006

Scott Raymond BROWN v REGINA

Judgment

1 MASON P: I agree with Sully J.

2 SULLY J: Mr. Brown (the appellant) appealed against a number of his convictions and sought leave to appeal against the resulting sentences.

3 He had previously been represented by senior counsel in the conviction appeal, but legal aid was withdrawn and he became self-represented. Proceedings in this Court had previously been listed for hearing and there were a number of occasions when the matter was stood over at call-over. At the hearing he sought a further adjournment on a particular basis which was opposed. The appellant then indicated that he was prepared to represent himself. Several documents were handed up and the grounds of appeal were clarified during oral address.

4 The Court permitted the appellant to elaborate upon the non-informative notice of appeal against conviction previously filed. It was clarified that the grounds of appeal were essentially three in number, namely:

1. The verdict was unreasonable having regard to the evidence;

2. Manslaughter ought to have been left to the jury and/or there were inadequate directions on joint enterprise; and

5 I shall outline the issues as to sentence when I come to that topic.

6 The appellant and Patrick Hudd were charged jointly on an indictment with five counts and were found guilty on each count after a trial spanning six weeks.

7 The charges, the respective statutory maximum penalties and the sentences imposed upon the appellant following his conviction on them, were:

· A head sentence of 20 years commencing on 13 August 2005 and expiring on 12 August 2025, with a non-parole period of 15 years expiring on 12 August 2020.

· A head sentence of 8 years commencing on 14 October 2003 and expiring on…

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 Brown v R

Details

AGLC: Scott Raymond Brown v Regina [2006] NSWCCA 395
Case: [2006] NSWCCA 395
Decision Date: 12 December 2006

CaseChat Overview and Summary

The appellant, Brown, was convicted by a jury in the Supreme Court of Victoria of murder in the first degree. The appeal was against his conviction and sentence. The co-offender had previously been convicted of murder in the first degree and was serving a life sentence. The nature of the appeal was that the verdict was unreasonable having regard to the evidence, that manslaughter ought to have been left to the jury, and that there were inadequate directions on joint enterprise. The joint trial with the co-offender had occasioned a miscarriage of justice. The appeal against conviction was dismissed, but leave was granted to appeal against the sentences passed at first instance. The appeal was dismissed.

The legal issues in the case were whether the verdict was unreasonable having regard to the evidence, whether manslaughter ought to have been left to the jury, and whether there were inadequate directions on joint enterprise. The court considered the evidence and submissions of the parties and concluded that the verdict was not unreasonable, that manslaughter was not an appropriate verdict, and that the directions on joint enterprise were adequate. The court found that the joint trial with the co-offender did not occasion a miscarriage of justice.

The court's reasoning was that the evidence was sufficient to support the verdict of murder in the first degree, that manslaughter was not an appropriate verdict because the appellant had played an active and significant role in the commission of the murder, and that the directions on joint enterprise were adequate because they correctly stated the law on joint enterprise. The court found that the joint trial with the co-offender did not occasion a miscarriage of justice because the appellant had been afforded a fair trial and because the evidence against him was strong. The appeal against conviction was dismissed, but leave was granted to appeal against the sentences passed at first instance. The appeal was dismissed.

Orders