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Carney v R; Cambey v R

Carney v R; Cambey v R

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Case Copied 20 October 2011 56 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carney v R; Cambey v R [2011] NSWCCA 223
Hearing dates: 22 September 2011
Decision date: 20 October 2011
Before: Whealy JA
James J
Hoeben J
Decision:
In each appeal, the appeal is allowed and the appellant is to have a new trial.

Catchwords:
CRIMINAL LAW - murder - alternative verdict of manslaughter - joint trial - issue as to whether the accused were present - should manslaughter have been left to jury - miscarriage of justice - conduct of counsel in not asking manslaughter to be left.

CRIMINAL LAW - murder - alternative verdict of manslaughter - not left to jury - meaning of "open on the evidence" - evidence available to support verdict of manslaughter rather than murder - error of law - application of Rule 4, Criminal Appeal Rules - leave to appeal required - appellants lost real chance of being found not guilty of murder but guilty of manslaughter.
CRIMINAL LAW - murder - alternative verdict of manslaughter - not left to jury - proviso to Criminal Appeal Act 1912, s 6 - test to be applied - nature of error to be taken into account - analysis of High Court decisions post Weiss v R.
Legislation Cited: Criminal Appeal Act 1912 ss 4, 6
Criminal Appeal Rules r 4
Cases Cited: R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [46], [99], [101]
Gilbert v R [2000] HCA 15; 201 CLR 414 at 416-417 per Gleeson CJ and Gummow J, 434 per Callinan J
Gillard v R [2003] HCA 64; 219 CLR 1 at 14-15 per Gleeson CJ and Callinan J, 15 per Gummow J, 34-35, 40 per Hayne J
Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [35] - [36], [39] - [45]
Pemble v R (1971) 124 CLR 107 per Barwick CJ at 117 - 118
R v Abusafiah (1991) 24 NSWLR 531 at 536
R v Wilson (2005) 62 NSWLR 346 at [20]
DJS v R [2010] NSWCCA 200
RWB v R [2010] NSWCCA 147
Kessing v R [2008] NSWCCA 310; 73 NSWLR 22
Cesan v R [2008] HCA 52; 236 CLR 358
AK v State of Western Australia [2008] HCA 8; 232 CLR 438
Gassy v R [2008] HCA 18; 236 CLR 293
Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 at [107] - [108]
Darwiche v R [2011] NSWCCA 62 at [170]
Carlton v R [2008] NSWCCA 244; 189 A Crim R 332 at 345
Darkan v R [2006] HCA 34; 227 CLR 373
Gassy v R [2008] HCA 18; 236 CLR 293 at [16] - [17]
Green v R (1971) 126 CLR 28 at 34
Rafael Cesan v R [2008] HCA 52; 236 CLR 358 at [96]
R v Nguyen [2010] HCA 38; 85 ALJR 8 at [50]
Blackwell v R [2011] NSWCCA 93 at [50],…

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: [2011] NSWCCA 223
Decision Date: 20 October 2011

CaseChat Overview and Summary

The case of Carney v R; Cambey v R involved a joint appeal by two defendants, Carney and Cambey, who had been convicted of murder following a trial in the Supreme Court of Queensland. The appellants challenged the trial judge's decision not to leave the alternative verdict of manslaughter to the jury, arguing that this omission constituted a miscarriage of justice and deprived them of a real chance of acquittal on the murder charge but conviction on the lesser charge of manslaughter.

The legal issues in the case centred on the trial judge's obligation to leave the alternative verdict of manslaughter to the jury when there was sufficient evidence to support it. The appellants argued that the trial judge's failure to do so amounted to an error of law and deprived them of a fair trial. The court had to determine whether the error of law was significant enough to warrant leave to appeal under the Criminal Appeal Rules and whether it constituted a miscarriage of justice under the proviso to section 6 of the Criminal Appeal Act 1912.

The court found that the trial judge had indeed erred in law by not leaving the alternative verdict of manslaughter to the jury, as there was evidence available that could have supported such a verdict. This error amounted to a miscarriage of justice as it deprived the appellants of a real chance of being found guilty of the lesser offence of manslaughter rather than murder. The court noted that the nature of the error and the availability of evidence supporting the alternative verdict were critical factors in determining the miscarriage of justice. The court concluded that the appellants had lost a real chance of being acquitted of murder but convicted of manslaughter due to the trial judge's error.

The court granted leave to appeal and quashed the convictions, ordering a retrial on the charge of murder with the alternative verdict of manslaughter to be left to the jury. The court's decision emphasised the importance of ensuring that alternative verdicts are considered when there is sufficient evidence to support them, and that trial judges must properly instruct juries on all available verdicts.

Orders