Dennis v The Queen - [2012] NSWCCA 120

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dennis v R [2012] NSWCCA 120
Hearing dates: 2 March 2012
Decision date: 08 June 2012
Before: Macfarlan JA at [1]
Rothman J at [59]
Davies J at [60]
Decision:
Appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction for murder - circumstantial evidence - whether direction required that jury needed to be satisfied beyond reasonable doubt that child suffered fatal injuries within specific time period alleged by the Crown - whether indispensable intermediate fact - whether Shepherd direction necessary
CRIMINAL PRACTICE & PROCEDURE - appeal - conviction for murder - application to adduce new evidence - whether any significant possibility that evidence would have led to acquittal if adduced at trial
Legislation Cited: Criminal Appeal Rules
Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411
(2011) 2007 A Crim R 411
Burrell v R [2009] NSWCCA 163; 196 A Crim R 199
Davidson v R [2009] NSWCCA 150; 75 NSWLR 150
Domican v The Queen [1992] HCA 13; 173 CLR 555
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
Rees v R [2010] NSWCCA 84; 200 A Crim R 83
Shepherd v R [1990] HCA 56; 170 CLR 573
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Matthew Allen James Dennis (Appellant)
Regina (Respondent)
Representation: Counsel:
D Dalton SC (Appellant)
J Girdham (Respondent)
Solicitors:
Legal Aid Commission NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/5917
Decision under appeal

Citation:

R v Matthew Allen James Dennis [2009] NSWSC 1357

Date of Decision:

2009-12-04 00:00:00

Before:

Barr AJ

File Number(s):

SC 2009/5917

Judgment

MACFARLAN JA: After a trial lasting almost three weeks, the appellant was convicted of the murder of a 23 month old boy referred to in the proceedings as "J". J was the son of the appellant's girlfriend. The Crown's case was that J died as a result of injuries inflicted upon him by the appellant whilst J was in his care in the early hours of Friday 21 March 2008.

The appellant's grounds of appeal are as follows:

"1. [The trial judge] failed to direct the jury that they had to find as an indispensable intermediate fact beyond reasonable doubt that the injuries to the child were occasioned to him between 2.00am and 3.30am when J was alone and in the sole care of the accused.

2. His Honour's treatment of the evidence with respect to the Crown contention that the injuries sustained to J were occasioned while J was alone with the appellant between 2.00am and 3.30am was unbalanced and unfair."

In addition the appellant sought leave to adduce new evidence on the appeal comprising mobile telephone records of two young women (referred to in the trial as "N" and "E") and evidence that there were three upstairs apartments in the unit block in which J died.

THE EVIDENCE AT THE TRIAL

The…

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 Dennis v The Queen

Details

AGLC: Dennis v The Queen [2012] NSWCCA 120
Case: [2012] NSWCCA 120
Decision Date: 08 June 2012

CaseChat Overview and Summary

The appellant was convicted of murder following a trial in the Supreme Court of Victoria. The prosecution alleged that he murdered a six-year-old child, and the evidence against him was circumstantial. The appellant sought to appeal his conviction, arguing that the trial judge should have directed the jury that they needed to be satisfied beyond reasonable doubt that the child suffered the fatal injuries within the specific time period alleged by the Crown. The appellant also sought to adduce new evidence in support of his appeal. The Court of Appeal considered these issues, along with the appellant's challenge to the sufficiency of the evidence.

The Court of Appeal held that the trial judge should have given a direction to the jury that they needed to be satisfied beyond reasonable doubt that the child suffered the fatal injuries within the specific time period alleged by the Crown. The Court held that the direction was necessary because the time of death was an indispensable intermediate fact that the prosecution needed to prove in order to establish the appellant's guilt. The Court held that the failure to give the direction was a significant miscarriage of justice, as it meant that the jury was not properly directed as to the burden of proof. The Court of Appeal also considered the appellant's application to adduce new evidence, but found that there was no significant possibility that the evidence would have led to an acquittal if it had been adduced at trial.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial. The Court held that the failure to give the necessary direction to the jury was a significant miscarriage of justice that required the conviction to be quashed. The Court also held that the application to adduce new evidence was not successful, as there was no significant possibility that the evidence would have led to an acquittal if it had been adduced at trial. The Court ordered a new trial, and noted that the appellant could adduce the new evidence at that trial if he wished.

Orders