Brown v The Queen - [2015] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brown v R [2015] NSWCCA 11
Hearing dates: 3 December 2014
Decision date: 18 February 2015
Before: Basten JA at [1];
McCallum J at [46];
R A Hulme J at [47]
Decision:
(1)Grant the applicant leave to appeal against his conviction for the murder of Wallace Ruiz-Sanchez on 12 October 2010.
(2)Dismiss the appeal.
(3)Grant the applicant leave to appeal against the sentence imposed for the murder.
(4)Dismiss the appeal.
Catchwords:
CRIMINAL LAW - conviction appeal – murder – jury direction – whether direction on alternative manslaughter verdict misleading – failure to expressly identify all circumstances in which manslaughter available – whether miscarriage of justice when part of direction complained of viewed in context

CRIMINAL LAW – conviction appeal – whether conviction unreasonable or not supported by evidence – evidence that use of gun taken to the scene contemplated by participant – gun discharged in course of attack
CRIMINAL LAW – sentencing – appeal against sentence – joint criminal enterprise murder - whether the judge err in accepting equal culpability of participants – whether the appellant less culpable than co-offender directly responsible for victim’s death
Legislation Cited: Criminal Appeal Act 1912 (NSW) , ss 5, 6
Cases Cited: M v The Queen [1994] HCA 63; 181 CLR 487
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
The Queen v Nguyen [2010] HCA 38; 242 CLR 491
R v Brown [2013] NSWSC 1557
R v Lockett [2013] NSWSC 1555
Category: Principal judgment
Parties: Carl Paul Brown (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr S Odgers SC (Appellant)
Ms S Dowling SC (Respondent)
Solicitors:
SE O’Connor – Legal Aid NSW
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/337942
Decision under appeal

Court or tribunal:

Supreme Court

Citation:

[2013] NSWSC 1557

Date of Decision:

25 October 2013

Before:

Price J

File Number(s):

2010/337942

Judgment

BASTEN JA: On the evening of 12 October 2010 Mr Wallace Ruiz-Sanchez was in his home at Russell Street, Mount Pritchard, together with his partner and another woman. He was accosted at his front door by the applicant, Carl Brown, and four other men. A fight ensued in the course of which Mr Ruiz-Sanchez was hit over the head by Samuel Lockett, with a shortened firearm. The gun was loaded and discharged when being used to belabour Mr Ruiz-Sanchez. The shot hit him in the head, killing him instantly. All five men were arrested and tried separately. Mr Lockett was convicted of murder; two other co-offenders entered pleas of guilty to manslaughter and a fourth co-offender was tried separately for manslaughter and acquitted. Mr Brown entered a plea of not guilty to a charge of murder, but was convicted. He was sentenced by Price J to imprisonment for 20 years, with a non-parole period of 13 years, 9 months.
Mr Brown (the applicant) sought leave to appeal against his conviction and sentence. The appeal against conviction was pressed on two…

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 The Queen

Details

AGLC: Brown v The Queen [2015] NSWCCA 11
Case: [2015] NSWCCA 11
Decision Date: 18 February 2015

CaseChat Overview and Summary

In the matter of Brown v The Queen, the appellant was convicted of murder following a trial before a jury. The primary issue before the court was whether the trial judge's direction to the jury regarding an alternative manslaughter verdict was misleading and failed to expressly identify all circumstances in which manslaughter was available. The court was also required to determine whether there was a miscarriage of justice when considering the complained-of direction in context. Furthermore, the appeal addressed whether the conviction was unreasonable or unsupported by evidence, particularly in relation to the use of a gun that was taken to the scene and subsequently discharged during the attack.

The court examined the jury direction and concluded that while the direction was not perfect, it did not mislead the jury or result in a miscarriage of justice. The court found that the direction, viewed in its entirety, provided the jury with an adequate understanding of the circumstances under which manslaughter could be considered. Regarding the conviction, the court found that the evidence supported the conclusion that the use of the gun was contemplated by the participants, and the discharge of the gun during the attack was sufficient to uphold the murder conviction. The court also assessed the appellant's argument regarding the sentencing, particularly in relation to the equal culpability of participants in a joint criminal enterprise. The court found that the trial judge did not err in accepting the equal culpability of the participants, and the appellant's culpability was not less than that of his co-offender, who was directly responsible for the victim's death.

The appeal was dismissed, and the conviction and sentence were upheld. The court found no basis to interfere with the jury's verdict or the trial judge's assessment of culpability and sentencing. The final orders of the court confirmed the appellant's conviction for murder and the sentence imposed by the trial judge, rejecting the appeal in its entirety.

Orders