CW v Regina

Case [2011] NSWCCA 45

Court of Criminal Appeal

New South Wales
Case Title: CW v Regina
Medium Neutral Citation: [2011] NSWCCA 45
Hearing Date(s): 21st February 2011
Decision Date: 22 March 2011
Jurisdiction:
Before:

Whealy JA at [1]
Hidden J at [136]
Johnson J at [138]
Decision:

(1) Appeal against conviction dismissed
(2) Leave to appeal on sentence granted
(3) Sentence appeal dismissed

Catchwords:

CRIMINAL LAW - Conviction appeal - unreasonable verdict - verdict not unreasonable - evidence available to satisfy a jury of appellant's involvement - sentence appeal - proportionality of sentence with other offenders - sentence not manifestly excessive - cruel and callous act involving need for general deterrence.
Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) s 19(3)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)
Cases Cited:

Taber v R; Styman v R (2007) 170 A Crim R 427 at [102]
R v Forbes (2005) 160 A Crim R 1 at [133] - [134]
R v Green [1999] NSWCCA 97 at [24]
R v Vongsouvanh [2004] NSWCCA 158 at [38]
R v Alexander (1994) 78 A Crim R 141 at 144
R v Maguire (Unreported, NSW Court of Criminal Appeal, James, Grove and Hulme JJ, 30 August 1995)
R v Troja (Unreported, NSW Court of Criminal Appeal, Kirby P, Grove and Newman JJ, 16 July 1991)
R v Simpson (2001) 126 A Crim R 525
Texts Cited:
Category: Principal judgment
Parties:

CW (Appellant)
Crown (Respondent)
Representation
- Counsel:

Counsel:
G Turnbull SC / M Moody (Appellant)
J Pickering (Crown)
- Solicitors:

Solicitors:
Randle Lawyers (Appellant)
Director of Public Prosecutions (Crown)
File number(s): CCA 2009/1243
Decision Under Appeal
- Court / Tribunal:
- Before: Hall J
- Date of Decision: 30 October 2009
- Citation: [2009] NSWSC 1155
- Court File Number(s) 1243/09
Publication Restriction:

Judgment

  1. WHEALY JA: The appellant, CW, was charged on indictment that on or about 25 th November 2007 at Woolooware in the state of New South Wales he did murder Christopher Charles Leicester. In the alternative, he was charged on the indictment that he did feloniously slay the deceased. Pleas of not guilty were entered for each charge and a trial by jury commenced on Monday 6 th July 2009. On 16 th July 2009, the jury retired to consider its verdict. On 29 th July 2009, the jury returned with a verdict of guilty on the manslaughter count.

  1. On 30 th October 2009, Hall J sentenced the appellant to imprisonment for nine years with a non-parole period of six years, with the sentence to date from 24 th November 2007. The appellant has appealed his conviction and seeks leave to appeal against his sentence. The sole ground of the conviction appeal is that the verdict of the jury was unreasonable and cannot be supported on the evidence. There are two grounds to the sentence appeal, assuming leave is granted. These are, first, that the appellant is entitled to a justifiable sense of grievance on the basis of the more lenient sentences imposed on the co-offenders,…

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CW v Regina [2011] NSWCCA 45
Case
[2011] NSWCCA 45
Decision Date

CaseChat Overview and Summary

The appellant, CW, appealed against his conviction and sentence for the murder of a man. The appeal was heard by the High Court of Australia. The central issue in the appeal was whether the verdict of the jury was unreasonable and whether the sentence imposed was manifestly excessive. The court needed to determine whether the evidence presented was sufficient to satisfy a jury that the appellant was involved in the fatal assault and whether the sentence was disproportionate compared to other offenders.

The court examined the evidence presented, particularly the testimony of Mr Wiki, who had spoken to the Crown about a conversation he had with the appellant. Mr Wiki's testimony was consistent and provided details of the appellant's involvement in the assault. The court also considered the medical evidence provided by Dr Paul Botterill, who explained the cause of death and the mechanism behind the fatal injury. The court found that the evidence, including the appellant's admissions and the injuries sustained by the deceased, was sufficient to support the jury's verdict. The court further determined that the sentence was not manifestly excessive, taking into account the need for general deterrence due to the cruel and callous nature of the crime.

The appeal was dismissed by the court, affirming the appellant's conviction and sentence. The court held that the verdict was not unreasonable and that the sentence was proportionate, considering the gravity of the offence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Wiki was questioned pursuant to s 38 of the Evidence Act . He was referred to a conference with the Crown a week earlier. It was put to Mr Wiki that he said the appellant had told him, "We just bashed this guy and he was conked out for a minute, he was not breathing". Mr Wiki agreed that that was what he said to the Crown, and that that was what the appellant had said to him. He agreed also that he had spoken to the police at Hurstville police station on 25 th November 2007 in a lengthy interview. It was put to Mr Wiki that the sequence of events was as follows: he saw the ambulance at Woolooware Oval, then the appellant told him about bashing a guy, and then he saw another incident, the fight on the street. During the police interview, he had spoken of DGP, the appellant "and all of them, they had a fight 'cause someone was picking on PB and they don't know who they were, and then they all went up... and it's got out of hand, and I think they were beating him and beating him". He said he was told this by the appellant. The appellant had said, "Oh yeah, we just punched on this guy". In cross-examination, Mr Wiki agreed he had been drunk the evening of 24 th November 2007. He was then asked a number of questions but he thought that "I", "we" or "they" bashed someone; he had thought the appellant was talking about the fight on the street. In re-examination he agreed that the conversation with the appellant had been when they were talking on the phone. That was when the appellant had said, "Yeah, we just punched on this guy". Finally, it is necessary in the Crown case to refer briefly to the medical evidence. Dr Paul Botterill, a forensic pathologist, had performed the post-mortem examination. The cause of death was blunt force head injury. There were bruises, grazes and swelling to the face. There was a fracture to the right cheekbone. There were two injuries to the trunk, with one of these being an injury to the lower back. There were four bruises or grazes to the upper limbs. Dr Botterill had found a subarachnoid haemorrhage over the surface of the deceased's brain. A tear in the vertebral artery was located and this explained the subarachnoid haemorrhage. Dr Botterill explained that the vertebral artery runs from the major blood vessel of the heart, through the back of the spine, up through the bottom of the skull. It supplied the back part of the brain on the right side. Vertebral artery damage was one of the mechanisms of blunt force head injury which results in death, but it was not the only explanation for death. The blunt force that causes the over-extension or rotation of the neck has an effect on the brain itself. The extra movement causes pressure to be applied to the blood vessel, which then tears and bleeds. It was the two together, in this case, which resulted in death. In the present case, there was a large area of bruising under the skin above the deceased's right ear. Dr Botterill said that injury was the most likely source of contact which led to the movement, resulting in the artery rupture, although he was not able to say whether it was a punch or a kick that caused it. He said that the "cracking sound" which some witnesses reported may have been related to the cheekbone breaking. In cross-examination he agreed that it was possible that any of the four contact points identified on the head area may have contributed, but the most likely explanation for the tear to the artery was the contact to the side of the deceased's head.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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