Buckley v The Queen; R v Buckley - [2012] NSWCCA 85

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Buckley v R; R v Buckley [2012] NSWCCA 85
Hearing dates: 17 April 2012
Decision date: 07 May 2012
Before: Basten JA at 1;
Blanch J at 51;
Beech-Jones at 52
Decision:
(1) Refuse the offender leave under r 4 of the Criminal Appeal Rules to raise grounds challenging the summing up to the jury, in circumstances where no objection had been taken at trial.
(2) Refuse the offender leave to appeal against his convictions.
(3) Dismiss the Director's appeal against the inadequacy of the sentences imposed for the offences of dangerous navigation causing death.

Catchwords:
CRIMINAL LAW - appeal - conviction - offences of aggravated dangerous navigation occasioning death - whether trial judge erred in presentation of evidence during summing up to jury - failure to summarise evidence by reference to issues - whether leave to appeal should be granted - R v Zorad (1990) 19 NSWLR 91 distinguished; El-Jalkh v R [2009] NSWCCA 139; RR v R [2011] NSWCCA 235 applied - Criminal Procedure Act 1986 (NSW), s 161

CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - whether manifestly inadequate - whether trial judge failed to assess adequately the moral culpability of the defendant - whether trial judge erred in assessing the objective seriousness of the offence - whether manifest error
CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - application of guideline judgments - R v Reynolds; R v Small [2010] NSWSC 691; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 applied
Legislation Cited: Crimes Act 1900 (NSW), s 405AA
Criminal Appeal Act 1912 (NSW), ss 5, 5D
Criminal Procedure Act 1986 (NSW), s 161
Cases Cited: El-Jalkh v R [2009] NSWCCA 139
Picken v Regina [2007] NSWCCA 319
R v Jurisic (1998) 45 NSWLR 209
RR v R [2011] NSWCCA 235
R v Reynolds; R v Small [2010] NSWSC 691
R v Tillott (NSWCCA, 8 April 1991, unreported)
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
R v Zorad (1990) 19 NSWLR 91
Category: Principal judgment
Parties: Sean Kenneth Buckley - Appellant
Crown - Respondent
Representation:
Counsel:

G A Brady/C J Othen - Appellant
F A Veltro - Crown
Solicitors:
Nyman Gibson Stewart - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Crown

File Number(s): CCA 2010/232297
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-09 00:00:00

Before:

North DCJ

File Number(s):

DC 2010/232297

Judgment

BASTEN JA: In the early hours of the morning, before dawn on 25 July 2009 Sean Buckley (the applicant) was navigating a six metre aluminium fishing boat across Bate Bay, east of Cronulla. The boat capsized, throwing the applicant and two friends into the water. The applicant swam ashore and raised the alarm, but his friends drowned long before they were found by the searchers.

Background and Issues

On 14 April 2011 the applicant was arraigned before a judge…

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.

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Details

Case: [2012] NSWCCA 85
Decision Date: 07 May 2012

CaseChat Overview and Summary

In the matter of Buckley v The Queen; R v Buckley, the appellant, a person previously convicted of multiple serious criminal offences, appealed against both his conviction and the sentences imposed for offences of aggravated dangerous navigation occasioning death. The Court of Criminal Appeal was tasked with determining whether the trial judge had erred in the presentation of evidence during the summing up to the jury and whether the sentences imposed were manifestly inadequate. The central issue was whether the trial judge had failed to adequately summarise the evidence by reference to the issues and assess the moral culpability of the defendant, and whether there had been a manifest error in the application of the objective seriousness of the offence.

The Court of Criminal Appeal considered whether the trial judge had erred in the presentation of evidence by not summarising the evidence by reference to the issues, a matter that could potentially lead to a miscarriage of justice. The court distinguished the case from R v Zorad and applied principles from El-Jalkh v R and RR v R, concluding that while there were some shortcomings in the trial judge's summing up, they did not reach the threshold of affecting the safety of the conviction. Regarding the sentences, the court examined whether they were manifestly inadequate and if the trial judge had failed to adequately assess the moral culpability of the appellant or the objective seriousness of the offence. The court found that the trial judge had adequately assessed the circumstances of the case and applied relevant guideline judgments.

The Court of Criminal Appeal held that the appellant's conviction was safe, as the errors in the summing up did not prejudice the fairness of the trial. However, the sentences were deemed manifestly inadequate due to the trial judge's failure to adequately consider the moral culpability of the appellant and the objective seriousness of the offence. The court applied principles from R v Reynolds; R v Small, R v Whyte, and other relevant judgments to determine the appropriate sentence. The appeal against the conviction was dismissed, but the appeal against sentence was allowed, and the matter was remitted to the District Court for re-sentencing.

The final orders of the Court of Criminal Appeal were that the appellant's conviction was upheld, but the sentences imposed were quashed and the matter was remitted to the District Court for re-sentencing. The Court of Criminal Appeal emphasised the importance of properly summarising evidence during the summing up to the jury and ensuring that sentences reflect the moral culpability of the defendant and the objective seriousness of the offence.

Orders