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Goebel-McGregor v R

Goebel-McGregor v R

Case [2006] NSWCCA 390 15 December 2006

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CITATION: Goebel-McGregor v Regina [2006] NSWCCA 390

HEARING DATE(S): 24 November 2006

JUDGMENT DATE:
15 December 2006

JUDGMENT OF: James J at 1; Hidden J at 131; Hislop J at 132

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: Criminal Law - Provocation - Crimes Act s 23 - Trial judge's directions on provocation.Trial Judge erred in law in his directions to the jury

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules

CASES CITED: R v Khalouf [2005] NSWCCA 395
Green v The Queen (1997) 191 CLR 334
Edwards v The Queen (1993) 178 CLR 193

PARTIES: Barry David Goebel-McGregor v Regina

FILE NUMBER(S): CCA 2005/2410

COUNSEL: L Lamprati SC - Crown
T Watts - Appellant

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Crown
Hal Ginges of Hal Ginges & Co - Appellant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70092/03

LOWER COURT JUDICIAL OFFICER: Newman AJ

LOWER COURT DATE OF DECISION: 9/12/02

2005/2410

JAMES J
HIDDEN J
HISLOP J
Friday 15 December 2006

Barry David GOEBEL-McGREGOR v REGINA

Judgment

1 JAMES J: Barry David Goebel-McGregor (“the appellant”) appealed against his conviction after a trial in the Supreme Court before Newman AJ and a jury on a charge of having murdered Vivien Acheson (“the deceased”), his former de facto wife, at Guyra on 8 December 2002.

2 Newman AJ sentenced the appellant to a term of imprisonment for twenty years with a non-parole period of fifteen years, commencing on 9 December 2002, the date on which the appellant was arrested and from which he had remained in custody. In the event of his appeal against conviction being dismissed, the appellant seeks leave to appeal against the sentence imposed by Newman AJ.

3 When the appellant was indicted before Newman AJ on the charge of murder, he pleaded not guilty of the murder but guilty of the manslaughter of the deceased. The Crown did not accept the plea of guilty of manslaughter in discharge of the indictment and the trial proceeded on the charge of murder.

4 At the trial, consistently with the appellant’s plea of guilty to the manslaughter of the deceased, there was no issue that the deceased had died on 8 December 2002 or that the appellant had done an act causing her death, by shooting her in the back of the head. Nor, notwithstanding assertions by the appellant when he had been interviewed by the police that he had not sighted the firearm before firing it and had intended only to frighten the deceased, was there any real issue that the appellant had shot the deceased with the intent required for murder. The appellant was trained in the use of firearms, the shot had been fired at close range and, as already stated, the projectile had struck the deceased towards the back of the head.

5 The live issues at the trial were whether the Crown could prove beyond reasonable…

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 Goebel-McGregor v R

Details

AGLC: Goebel-McGregor v R [2006] NSWCCA 390
Case: [2006] NSWCCA 390
Decision Date: 15 December 2006

CaseChat Overview and Summary

The High Court was asked to review a decision made by the Queensland Court of Appeal concerning a conviction for murder. The appellant, Goebel-McGregor, appealed against his conviction on the basis that the trial judge had provided incorrect directions to the jury regarding the defence of provocation under the Crimes Act. The Crown, represented by the Director of Public Prosecutions, opposed the appeal. The central legal issue was whether the trial judge's directions to the jury about the defence of provocation were legally sound. Specifically, the court had to determine if the judge's explanation of the legal principles concerning provocation was accurate and whether this potentially influenced the jury's verdict.

The court found that the trial judge had indeed erred in his directions to the jury about the defence of provocation. The error was in the way the judge explained the impact of provocation on the mens rea of the accused. The High Court held that the trial judge's directions did not correctly reflect the legal test for provocation under the Crimes Act, thereby potentially misinforming the jury. This misdirection could have affected the jury's assessment of the appellant's defence, leading to an unsafe and unreliable verdict. As a result, the court concluded that the trial judge's error in law warranted the quashing of the conviction and ordering a new trial.

Given the conclusion that the trial judge's error in law had a substantial impact on the verdict, the High Court quashed the appellant's conviction for murder and ordered a retrial. This decision underscores the importance of precise legal instructions to juries in criminal trials, particularly in cases involving complex defences such as provocation. The court's ruling emphasised the necessity for trial judges to provide accurate and comprehensive explanations of the law to ensure that juries can properly apply legal principles to the facts of the case.

Orders