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Cliff v R

Cliff v R

Case [2023] NSWCCA 15 10 February 2023

Appeal

Jurisdiction

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cliff v R [2023] NSWCCA 15
Hearing dates: 9 September 2022
Date of orders: 10 February 2023
Decision date: 10 February 2023
Before: Kirk JA at [1];
Harrison J at [68];
Wright J at [69];
Decision:
(1) Time for filing the application for leave to appeal is extended to permit the application to be made.
(2) Leave to appeal is refused.

Catchwords:
CRIMINAL PROCEDURE — Trial — Directions to jury on intoxication and intent — Where oral directions said to have introduced a staged approach — Where oral directions said to have reversed the onus and undermined the criminal standard of proof — Leave to appeal refused

Legislation Cited:
Crimes Act 1900 (NSW), s 428C(1)
Criminal Appeal Act 1912 (NSW), ss 6, 10
Criminal Appeal Rules 1952 (NSW), r 4
Jury Act 1977 (NSW), s 55B
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Cases Cited:
ARS v R [2011] NSWCCA 266
Beattie v R [2021] NSWCCA 291
Cook (a pseudonym) v R [2022] NSWCCA 282
Edwards v The Queen [2021] HCA 28
GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
Green v The Queen (1971) 126 CLR 28; [1971] HCA 55
Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63
Hofer v The Queen [2022] HCA 36
Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242
Lin v State of Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13
Morrison v R [2022] NSWCCA 158
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373
Saunders v R [2022] NSWCCA 273
Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9

Texts Cited:
NSW Judicial Commission’s Criminal Trial Courts Bench Book

Category: Principal judgment
Parties: Bryce Cliff (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Woods (Applicant)
E Balodis (Crown)
Solicitors:
MacDougall Hydes Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2016/175505
Publication restriction: NIL
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Before:

Campbell J

File Number(s):

2016/175505

HEADNOTE

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

The applicant was convicted by a jury of murdering a 16-year-old boy, and was thereafter sentenced to imprisonment for a term of 30 years with a non-parole period of 22 years. The principal issue in the trial concerned the impact of the applicant’s intoxication at the time of the stabbing upon his ability to form the intent of inflicting grievous bodily harm. He sought leave to appeal against this conviction, doing so out of time.

The applicant’s single ground of appeal was that the trial judge’s directions to the jury on intoxication undermined the onus and standard of proof such that there was a miscarriage of justice. No complaint about the directions…

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 Cliff v R

Details

AGLC: Cliff v R [2023] NSWCCA 15
Case: [2023] NSWCCA 15
Decision Date: 10 February 2023

CaseChat Overview and Summary

In Cliff v R, the respondent appealed against a conviction of murder, arguing that oral directions given to the jury by the trial judge were erroneous. The directions were said to have introduced a staged approach to the assessment of intoxication and intent, which reversed the onus and undermined the criminal standard of proof. The respondent contended that the directions placed an improper onus on him to prove that he lacked intent to kill, and that they had the effect of requiring him to negate the effect of intoxication on his intent. The respondent further argued that the directions undermined the criminal standard of proof by requiring him to disprove the effect of intoxication on his intent beyond reasonable doubt.

The legal issues before the court were whether the trial judge's oral directions to the jury constituted a staged approach to the assessment of intoxication and intent, and whether they placed an improper onus on the respondent to prove that he lacked intent to kill. The court also had to consider whether the directions undermined the criminal standard of proof. The court examined the directions in the context of the whole trial and considered whether they had the effect of requiring the respondent to disprove the effect of intoxication on his intent beyond reasonable doubt.

The court held that the oral directions did not constitute a staged approach to the assessment of intoxication and intent, and that they did not place an improper onus on the respondent to prove that he lacked intent to kill. The court held that the directions required the jury to consider the effect of intoxication on the respondent's intent, but did not require him to disprove that effect beyond reasonable doubt. The court held that the directions did not undermine the criminal standard of proof, and that the respondent had failed to establish that the directions had any prejudicial effect on the outcome of the trial. The court refused leave to appeal.

The court's refusal of leave to appeal means that the conviction of the respondent stands. The court held that the oral directions given to the jury did not constitute a staged approach to the assessment of intoxication and intent, and that they did not place an improper onus on the respondent to prove that he lacked intent to kill. The court also held that the directions did not undermine the criminal standard of proof, and that the respondent had failed to establish that the directions had any prejudicial effect on the outcome of the trial.

Orders