Grant v R

[2014] NSWCCA 67

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Grant v R [2014] NSWCCA 67

Hearing dates:

6 December 2013; 24 March 2014

Decision date:

05 May 2014

Before:

Leeming JA; Adams J; Hall J

Decision:

1. Grant leave to appeal in respect of Ground 2.

2. Appeal allowed.

3. Set aside the sentence imposed for manslaughter on 15 September 2010 and in lieu thereof, sentence the appellant to imprisonment for a period of 10 years, commencing from 13 February 2011, with a non-parole period of 7 years and 6 months, commencing 13 February 2011 and expiring on 12 August 2018. The balance of the term is 2 years and 6 months, expiring 12 February 2021.

4. The earliest date upon which Mr Grant is eligible for release to parole is 12 August 2018.

Catchwords:

CRIMINAL LAW - manslaughter - appeal against sentence - whether factual findings contravened rule in R v De Simoni - whether miscarriage of justice by reason of solicitor's failure to obtain psychologists and psychiatrists reports - whether miscarriage of justice through wrong admission of intent to kill as opposed to intent to cause grievous bodily harm - appeal allowed and applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW), s 18, s 421
Criminal Appeal Act 1912 (NSW), s 6

Cases Cited:

Ali v The Queen [2005] HCA 8; 214 ALR 1
Apps v R [2006] NSWCCA 290
Crawford v R [2013] NSWCCA 269
Dinsdale v R (2000) 202 CLR 321
Douar v R [2005] NSWCCA 154; 159 A Crim R 154
Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
Fisher v R [2008] NSWCCA 129
HJ v R [2014] NSWCCA 21
Khoury v R [2011] NSWCCA 118
KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503
Lane v R [2013] NSWCCA 317
Lawless v The Queen (1979) 142 CLR 659
Lee v R [2013] NSWCCA 68
Magaming v The Queen [2013] HCA 40; 87 ALJR 1060
Matthews v R [2013] NSWCCA 187
Monteiro v R [2011] NSWCCA 113
Mortada v R [2014] NSWCCA 36
Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
Outram v R [2013] NSWCCA 329
PFC v R [2011] NSWCCA 275
R v Chioban [2002] NSWSC 972; [2003] NSWCCA 304
R v Birks (1990) 19 NSWLR 677
R v Diab [2007] NSWSC 577
R v De Simoni (1981) 147 CLR 383
R v Forbes [2005] NSWCCA 377
R v Fordham (1997) 98 A Crim R 359
R v Jones [2007] NSWSC 1333
R v Hillsley [2006] NSWCCA 312
R v Lavender [2005] HCA 37; 222 CLR 67
R v Nguyen [2002] NSWSC 536
R v Nguyen [2013] NSWCCA 195
R v Trevenna [2003] NSWSC 463; [2004] NSWCCA 433
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Tran v R [2014] NSWCCA 32
Winter v R [2013] NSWCCA 231
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645

Category:

Principal judgment

Parties:

Barry Grant (Applicant)
Regina (Respondent)

Representation:

Counsel:
H White (Applicant)
J Girdham (6 December) / H Wilson (24 March) (Crown)
Solicitors:
Patricia White and Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/144043 2009/75741

 Decision under appeal 

Citation:

R v Barry Ronald Grant [2010] NSWSC 1048

Date of Decision:

2010-09-15 00:00:00

Before:

Barr AJ

File Number(s):

2009/144043
2009/75741

Judgment

1. THE COURT: Mr Barry Ronald Grant shot and killed Mr Jethro Matheson on 15 January 2009, and pleaded guilty to manslaughter and other crimes. He seeks leave to appeal against the sentence that was imposed on him on 15 September 2010 of 12 years imprisonment, with a non-parole period of 8 years and 6 months, in relation to the charge of manslaughter. The other sentences imposed on him, for cultivation and supply of cannabis, and unlawfully disposing of a body, have wholly or largely been served, and are not sought to be challenged.

1. We are of the view that leave should not be granted in relation to proposed Grounds 1, 3 and 4. However, leave should be granted and the appeal allowed on the basis of the proposed second ground of appeal. The second ground is that there was a miscarriage of justice following an admission made by Mr Grant's former solicitor who appeared for him at the sentencing hearing. The admission which should not have been made was that Mr Grant had intended to kill the deceased.

1. We first set out below the procedural and factual background, then address each of the proposed grounds, in the order referred to above, and then turn to resentencing Mr Grant.

Procedural background

1. Mr Grant was arrested and charged with the two drug offences on 13 February 2009, and pleaded guilty at the earliest opportunity to them. He was subsequently charged with murder and was committed to the Supreme Court for trial. He offered to plead guilty to a charge of manslaughter, before he was committed, but his offer was not accepted by the Crown. When arraigned, he confirmed his pleas of guilty to the two drug charges, and pleaded not guilty to murder. Shortly before the commencement of the trial, an amended indictment charged him with manslaughter as an alternative to murder and added a charge of wilfully disposing of the body of Mr Matheson. Mr Grant pleaded guilty to the charge of manslaughter and of wilfully disposing of the body, and the Crown accepted those pleas in discharge of the amended indictment.

1. Thus Mr Grant ultimately pleaded guilty to the following four offences:

1. That on or about 15 January 2009 at Condong he unlawfully killed Jethro Matheson;

2. That on or about 15 January 2009 at Condong and elsewhere in New South Wales he wilfully disposed of the dead body of Jethro Matheson, he having died a violent death, before the Coroner had had an opportunity of holding an inquest upon the dead body;

3. That between 15 and 17 January 2009 at Condong he cultivated not less than the large commercial quantity of prohibited plants, namely 1,549 cannabis plants; and

4. That at the same time and place he supplied a prohibited drug, namely 8.14 kilograms of cannabis.

1. The plea was entered on 7 September 2010 and there was a sentencing hearing on 9 September 2010 during which Mr Grant was cross-examined extensively. On 15 September 2010, the primary judge sentenced Mr Grant for imprisonment for a term of 12 years, commencing 13 February 2011, with a non-parole period of 8 years and 6 months, for manslaughter. His Honour imposed a fixed term of 1 year's imprisonment for unlawfully disposing of the body, which was wholly subsumed by the sentence for manslaughter. For the cultivation offence, the primary judge sentenced Mr Grant for imprisonment for 5 years and 4 months, with a non-parole period of 4 years, commencing 13 February 2009. The sentence for the supply offence was wholly subsumed within the sentence for cultivation.

1. This application for leave is confined to the sentence for manslaughter. Two of the other three sentences have wholly expired, as has the non-parole period of the sentence for cultivation. A new solicitor, Mr Jason Hanna, was retained by the Legal Aid Commission on 15 November 2010. He sought and obtained a series of extensions of time within which to file an application for leave to appeal against sentence. The last of those extensions expired on 31 January 2013. The application for leave, supporting affidavits, and written submissions were filed on 19 March 2013. On Monday 2 December 2013 the Registrar extended the time to permit the late application. However, the delay remains relevant to proposed Ground 3.

Factual background

1. There was no formal, signed, agreed statement of facts. At the sentencing hearing, the Crown tendered, and Mr John Weller, solicitor, who appeared for Mr Grant, expressly agreed with, the Crown Case Statement. The following matters are taken from that statement.

1. Mr Grant resided on a 7 acre property in Condong, in northern New South Wales. There were two sheds and a second residential dwelling on the property, in which no fewer than 1,549 cannabis plants were being cultivated. Police also found approximately 8 kilograms of dried cannabis and some ecstasy tablets on the property.

1. On 15 January 2009, the deceased and a friend, Mr Russo, travelled by car to Mr Grant's property with the intent of stealing cannabis from Mr Grant. Mr Matheson entered the open front door of the second dwelling where he confronted Mr Grant who produced and discharged a firearm twice. Both bullets hit the deceased in the chest. Mr Grant moved his arm and pointed the gun towards Mr Russo. Mr Matheson turned and ran from the room and pushed Mr Russo out of the way. Mr Russo fled the scene. He last saw his friend Mr Matheson rushing from the dwelling towards the road.

1. Mr Grant placed Mr Matheson's body in the rear of the tray of his Toyota Landcruiser and drove some 110 kilometres to the Border Ranges National Park near Kyogle. Telephone records indicated that Mr Grant's mobile phone was activated at 8.52pm on 15 January 2009 within the operational capacity of a mobile phone cell tower located in Kyogle.

1. Mr Grant's vehicle was set alight that weekend and recovered by police on 19 January 2009. A forensic examination of the vehicle revealed blood-like stains which were observed to be consistent with a dragging motion exiting the rear of the vehicle tray. Scientific analyses confirmed that it was the blood of the deceased.

1. Not until 30 January 2009 was the deceased's body found, resting against a tree approximately 20 metres below the roadway within the National Park. In the meantime, Mr Grant remained at large. He attended Byron Bay Police Station on 13 February 2009 in the company of his legal representative Mr Weller. He was cautioned, charged and bail was refused. He declined to participate in an ERISP with the police. On Tuesday 24 February 2009, Mr Grant was arrested at Grafton Police Station in relation to the murder of Jethro Matheson. He participated in an ERISP on that day.

1. A statement made by Mr Grant on 22 April 2009 of 8 pages and 30 paragraphs was tendered and he was cross-examined on it. That statement had been prepared by Mr Weller. It referred to financial difficulties Mr Grant had suffered as a banana farmer, and later strawberry farmer using a substantial hydroponics set-up, and his decision to use his hydroponics knowledge to grow cannabis in 2008. At the time his first batch of successful plants was reaching maturity, around August 2008, he said he was assaulted and seriously injured by two men who came to his property, one with a cane knife, the other with a steel hoe. Thereafter, he installed a security alarm and surveillance cameras and acquired a pistol and ammunition. He said that he had never possessed or used a pistol, although his father had always had a .22 rifle which he used around the farm.

1. The whole of his statement in relation to the events of 15 January 2009 was as follows:

"26. On the 15th of January late in the afternoon I had finished work and was sitting in the second house having a beer and a man burst in through the open door and ran at me with two hands above his head brandishing a crow bar and growling loudly. He was dressed in camouflage clothing and I recognised him as the man who threatened to kill me the last time I was attacked and I thought that this time he was going to kill me. I moved towards him with my hands up trying to stop him and he smashed the crow bar down on my head causing me to fall backwards. I struggled to my feet and I turned to run away, my only thought was to escape and I wasn't concerned about the cannabis, I just wanted to get away. Almost immediately I was struck again severely on my left shoulder and neck area. This blow pushed me towards the bench where I had the pistol. I got the gun and spun and said "Stop" but he kept rushing towards me and growling, as if he was crazy, holding the crow bar with both his hands above his head about to smash it down onto my head. I thought I was going to die and I had no other choice, to save my life I fired the pistol but he kept coming at me growling loudly, I was terrified and I fired it again. He stopped and turned and ran out the door. I stood shaking and then went to the door and saw him running down the driveway and I also saw a hand approximately 10 metres away go around the side of the house.

27. I was injured and in shock and I wandered around and saw his body near my large shed and I could tell he was dead. I don't remember how long I stood there for I was in complete shock. I then panicked and put his body in the back of my truck and drove around for hours before leaving it in a forest area.

28. I returned home and hid outside but didn't sleep all night, as I was extremely frightened that the other men that had been with the man I had shot would come back and kill me.

29. On the 16th of January 2009 I was still in shock and very upset and frightened and in panic I decided to leave my farm and cannabis and go into hiding as I feared for my life. Prior to leaving the area I disposed of the firearm and my motor vehicle and arranged for the crow bar to be retained but due to circumstances beyond my control I don't know where it is at this time.

30. On the 13th of February I voluntarily went to the Byron Bay Police Station and handed myself in to Police."

1. Neither the firearm used by Mr Grant, nor the crowbar said to have been used by Mr Matheson, were recovered. Because Mr Grant went into hiding for four weeks, there was no independent evidence of the injuries he said he had suffered. As noted above, the vehicle was disposed of by its being set alight shortly after the incident.

Application for leave to appeal against sentence

1. Mr Grant's application for leave to appeal against sentence was confined to his sentence for manslaughter. By his amended grounds of appeal filed 3 December 2013, he relied upon four proposed grounds:

1. The findings of facts made by the sentencing Judge were not consistent with manslaughter based on excessive self-defence but were consistent with murder in breach of the rule in R v De Simoni (1981) 147 CLR 383.

2. There was a miscarriage of justice based on the admission made by the Applicant's legal representative concerning intent to kill as the basis for the plea of guilty having been entered.

3. There was a miscarriage of justice based on the failure by the Applicant's legal representative to obtain background reports concerning the Applicant's condition at the time of the offence.

4. The sentence imposed for the offence of manslaughter was manifestly excessive.

Proposed Grounds 2 and 3 raise factual questions about the conduct of the trial and in particular the quality and competency of Mr Grant's representation. The application for leave was listed for hearing on 6 December 2013. On that day, affidavits of Mr Grant and Mr Weller were read, and both men were cross-examined in relation to those two grounds.

Evidence bearing on proposed Ground Two

1. The Crown accepted a plea of guilty for manslaughter on the basis of excessive self-defence. The primary judge squarely asked Mr Weller (appearing for Mr Grant) these questions:

"His Honour: What was the intention then of the accused?

Mr Weller: Your Honour, he was in a situation -

His Honour: What was the specific intent?

Mr Weller: The specific intent was to defend himself.

His Honour: What was the specific intent for murder? Did he intend to kill; did he intend to do grievous bodily harm; what is the position?

Mr Weller: Well, he intended to kill, your Honour."

[NB. No transcript seems to have been provided for 7 September - this quote is taken from p 7 of the appellant's submissions]

1. That was the unequivocal admission which is central to proposed Ground 2.

1. Mr Grant was, naturally, present while this occurred. He swore in paragraphs 6-8 of an affidavit dated 31 October 2012 that:

"6. I did not instruct Mr Weller that I intended to kill the deceased as opposed to cause him grievous bodily harm. I did not want the deceased to die. I just wanted him to stop attacking me. I was not trying to kill him.

7. I was trying to stop the deceased from hitting me over the head with the iron bar. I pointed the gun at him and said 'stop'. He kept coming towards me. I then shot at him to protect myself. He was about three metres away from me. After I shot at him the first time, he kept coming towards me so I shot at him a second time again to protect myself. As soon as he commenced to leave my home, I did not fire any further shots. When he left, I did not know he was going to die. If I was trying to kill him I would have kept on shooting him.

8. I was in Court when Mr Weller made the admission that I intended to kill the deceased. I didn't understand a lot of what was being said during the proceedings. I certainly did not understand the significance of this admission that Mr Weller had made on my behalf. It was never discussed beforehand. It was never explained to me what it meant. If it had been explained to me I would have told Mr Weller that I intended to cause grievous bodily harm not to kill."

1. When cross-examined in this Court he was asked:

"Q. ... did you then hear Justice Barr saying that you had an intention to kill?

A. I didn't take it - I didn't understand it at all, Miss. And I was never asked about any of it.

Q. I suggest to you that that was because it was consistent with your instructions to Mr Weller?

A. That is not true at all. I was always protecting myself. I never meant to kill anyone, Miss."

1. He was also asked:

"Q. At the time, you considered yourself to be in a kill or be killed situation?

A. No Miss, I just wanted to defend myself.

...

Q. You say that when you fired the gun first time he didn't stop?

A. No Miss.

Q. And you fired again?

A. I did because he was still attacking me.

Q. And you fired again?

A. Yes Miss.

Q. When you fired again you say he was just two metres away from you?

A. Roughly that Miss.

Q. And you were terrified you say?

A. I was terrified yes.

Q. I suggest to you that you didn't think that rather than kill him you thought I would just wound him?

A. I just wanted to stop him Miss. I wanted to stop him attacking me with the iron bar.

Q. I suggest that you fired the gun, that you did not intend to do anything other than to kill him?

A. No Miss. I'm not a violent person like that. I was just trying to defend myself.

Q. You were you say terrified and scared?

A. Absolutely.

Q. I suggest to you that you did not measure what you needed to do was to harm and not kill?

A. I didn't want to kill him at all Miss no. I just wanted to stop him attacking me with the iron bar Miss."

1. Mr Grant denied that he gave instructions to Mr Weller that he found himself in a "kill or be killed" situation. He was not otherwise cross-examined about paragraph 8 of his affidavit.

1. On the other hand, Mr Weller said that he had detailed instructions from Mr Grant on the issue of excessive self-defence. He said in his affidavit, which was admitted without objection, that the evidence given by Mr Grant was consistent with those instructions and the overall circumstances of the case "namely, that [Mr Grant] instructed me he found himself in a kill or be killed situation created by a committed and very violent aggressor". Mr Weller said that his response to the primary judge was consistent with those instructions, and his duty of candour to the Court. His affidavit stated that when asked by his Honour:

"15. ... my initial and subsequent responses were consistent with the entirety of the discussions I had with the Applicant and the overall circumstances of the Applicant's case (it was also consistent with my duty of candour to the Court) in particular -

(a) The Applicant shot the deceased twice in the chest area at close range. There was also evidence the offender had purchased the pistol for protection;

(b) The Applicant said in evidence that he knew he had killed the deceased "What have I done? I have killed a man."

(c) The Applicant's explanation for shooting the deceased was to "Stop him" - "I just wanted to stop him" because he thought unless he "stopped him" he would be killed.

(d) Clearly the only way to have stopped the deceased, given their antecedent encounter and extreme aggression shown by the deceased, was to use lethal force upon the deceased.

(e) The offender "couldn't understand why I did what I did" ie why he shot and killed the deceased.

16. In essence the Applicant's instructions were consistent with an episode whereby he had used excessive lethal force against the deceased to protect himself against and extremely violent, illegal drug robber who was determined to visit lethal physical damage upon the Applicant. The Applicant's instructions were clear that the only way to stop the deceased's violent attack was to resort to lethal force, manifestation of which was two gunshots to the chest of the deceased at close range."

1. When being cross-examined, Mr Weller said that he made a deliberate decision not to include in the statement whether Mr Grant had an intention to kill or merely to cause grievous bodily harm. He said:

"I thought it was in his interests to have the emphasis on his real intention was to defend himself and stop this person and I took it no further than that. Similarly in the statement I didn't go into great detail about the disposal of the gun, the body or those matters."

1. Although Mr Weller maintained that he well appreciated the difference between an intention to kill and an intention to cause grievous bodily harm, he said:

"Well when I spoke to him about what went through his mind, he repeatedly stated that he wanted to stop the man, that was his primary intention and that he did everything possible to stop him and he was attacking him with this jemmy bar, and that's what was going through his mind and that it was only after he'd been cracked on the skull I think once in the back, when he grabbed the pistol that he then called "Stop". And then I questioned him quite strongly about then you shot him twice in the chest at close range and that's when he said, "Well it was a kill or be killed situation but I never wanted it to happen". That was the extent of the instructions, and the major focus of the affidavit was to really put emphasis on what I believed to be his real focus and intention was to save himself."

1. Mr Weller maintained that he actually recalled the instructions that he was in a "kill or be killed situation". Mr Weller gave oral evidence that his notes of instructions given by Mr Grant had been sent by him to Legal Aid, when a new solicitor was appointed for the sentencing appeal. This Court was told that that oral evidence was the first time either party had been told, squarely, that there were contemporaneous notes of Mr Grant's instructions which had been sent to Legal Aid, although both parties told the Court that they had, without success, made informal attempts to obtain the file from Legal Aid.

1. Finally, Mr Weller was asked:

"Q. Do you accept that the admission that you made to the Supreme Court about intent to kill, was based on a judgment on your part rather than on any express instructions from him?

A. It partly was based on a judgment on my part, yes and partly on the discussions and the way that he described the attack and why he shot the way he did."

No objection was taken to both Mr Grant and Mr Weller being cross-examined before this Court. Nevertheless, this should not necessarily be regarded as an endorsement of this practice: Mortada v R [2014] NSWCCA 36 at [57].

1. The hearing was adjourned, to permit a subpoena to the Legal Aid Commission for Mr Weller's file to be issued and complied with. That caused delay. However, against the chance that there was a contemporaneous note of the instructions said to have been given by Mr Grant to Mr Weller as to his intent when he shot and killed Mr Matheson, and given the diametrically opposed evidence of Mr Grant and Mr Weller, and the importance of the issue to both of them, that course seemed necessary and appropriate, and was acceded to by the parties.

1. Although the matter was re-listed in January 2014 to be allocated a date in February (which occurred), the hearing could not resume until March (through faultless unavailability of counsel appearing for the Crown, which was accommodated by the applicant). There was no production by the Legal Aid Commission, but, in accordance with this Court's directions, an affidavit was served explaining what steps had been taken to search for the file and that there was no record of it being received. The affidavit also confirmed that the Commission had received an application for a grant of legal aid on 9 November 2010 (the day of the sentencing hearing) and had assigned it to Mr Hanna on 15 November 2010 (the day sentence was imposed). The interrelationship of this timing was otherwise unexplored in the evidence.

1. In relation to proposed Ground 3, as to the absence of any psychological or psychiatric evidence, there was also conflicting evidence given in this Court by Mr Grant and Mr Weller. It will be convenient to deal with this evidence when addressing that ground.

Proposed Ground One: did the findings of fact contravene the rule in R v De Simoni (1981) 147 CLR 383

1. This proposed ground of appeal is:

"The findings of fact made by the sentencing judge were not consistent with manslaughter based on excessive self-defence but were consistent with murder in breach of the rule in R v De Simoni (1981) 147 CLR 383."

1. The primary judge made it plain that he either rejected or was sceptical of important aspects of Mr Grant's evidence. Mr Grant's submissions identified three matters in particular. The first was the rejection of his evidence that he had purchased a pistol and ammunition "on the spur of the moment". Mr Grant had given evidence that he was not looking for a gun, but was considering measures by which he could protect himself. The primary judge was sceptical, doubting that "somebody at the hotel happened to mention that somebody else at the hotel had a firearm for sale". His Honour formed and expressed the view that the steps taken by Mr Grant were carefully thought out.

1. Secondly, his Honour was sceptical as to whether Mr Grant had been attacked by a crowbar. The friend to whom he said he had given the crowbar for safekeeping was not named and there was no independent evidence of any instrument used by the deceased, or of any injury received by Mr Grant. His Honour said:

"It is possible that he is telling the truth about those matters, though I am left unsure because I am not confident that he has always told the truth."

1. Thirdly, his Honour rejected a submission that the fact that the pistol was at hand was "in some way fortuitous or unplanned". His Honour said:

"While I do not doubt that the events of that occasion happened quickly, I am not satisfied that it was by accident or good fortune that the offender was able to seize the pistol. I think that he was prepared to meet the deceased and acted as he had intended ever since he bought the pistol and ammunition."

1. Counsel for Mr Grant conceded, properly, that it was open to the primary judge to reject aspects of his evidence. However, it was not open for his Honour to reject the plea of guilty that he had entered, which had been accepted by the Crown, and it was not open to the primary judge to sentence Mr Grant in relation to facts consistent with murder rather than manslaughter. Mr Grant relied on the statement in De Simoni at 389:

" ... a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

1. This was described in Magaming v The Queen [2013] HCA 40; 87 ALJR 1060 at [15] as a common law principle of sentencing. It is a consequence of the fact that the court is sentencing the offender for the offence, and not some different offence for which the offender was not charged or convicted: Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 at [26]. If such circumstances are taken into account, then an extraneous or irrelevant consideration will have affected the sentencing decision: R v Nguyen [2013] NSWCCA 195 at [52].

1. This proposed ground falls to be assessed in the light of a fair reading of the reasons as a whole, which are not to be subjected to minute scrutiny in the search of error: see for example Fisher v R [2008] NSWCCA 129 at [24]. Read as a whole, the sentencing remarks disclose no such error. We deal with each of the three matters raised by Mr Grant in turn.

1. In respect of the first matter, immediately after the primary judge expressed scepticism about the existence of the crowbar and the injuries inflicted by the deceased, his Honour said:

"However, I am satisfied that the deceased was a violent and frightening man who attacked the offender in August 2008 and on the occasion of the shooting. I do not doubt that the offender was afraid of him. I do not doubt that one of his reasons for maintaining a loaded pistol was to protect himself. The Crown's acceptance of the plea of guilty of manslaughter requires a finding that the offender acted as he did because he believed it necessary to do so."

1. Similarly, in relation to his Honour's scepticism that Mr Grant came by the pistol less serendipitously than described in his evidence, his Honour expressly accepted that Mr Grant "was, of course, concerned about his own safety" although adding that there was more at stake, namely, protecting his commercial interest in the cannabis crop.

1. In relation to the third matter, although his Honour found that Mr Grant was "prepared to meet the deceased and acted as he had intended ever since he bought the pistol and ammunition", that finding is not inconsistent with Mr Grant acting because he believed it necessary to do so in order to defend himself.

1. As the Crown observed, there is a vast range of circumstances affecting culpability in the case of manslaughter. His Honour was therefore required to make findings on the key facts leading up to Mr Matheson's death, including the acquisition of the weapon, the circumstances in which Mr Matheson attacked Mr Grant, and how Mr Grant came to shoot him. It is plain from the sentencing remarks that his Honour was conscious of the factual matters essential to the plea. Further, an element of premeditation in Mr Grant's acquisition of the weapon and ammunition is not inconsistent with the use of excessive self-defence when he was attacked by two men intent on harming him and stealing his crop. The rejection of parts of Mr Grant's testimony did not amount to a rejection of his plea of guilty to manslaughter. Nor did it result in the imposition of a sentence on facts consistent with murder. We would not grant leave to raise this ground.

Proposed Ground Three: failure to obtain background reports

1. Mr Grant had sworn in his affidavit dated 31 October 2012 that Mr Weller had advised him that "this is a straightforward case and a psychologist report is not needed".

1. Mr Weller denied that at any time he had formed the opinion that there was a need for a psychologist's report. He said that Mr Grant had no history of mental health issues, had the strong support and love from his ex-wife and children, and said that "[t]here was nothing about his demeanour or his ability to recall information that suggested a need for or reference to psychological or psychiatric intervention".

1. For the purpose of advancing this ground, two expert reports were tendered: that of Ms Laura Durkin, forensic psychologist, and that of Dr Jonathon Adams, forensic psychiatrist. The first was based upon a three hour interview at the Lithgow Correctional Centre on 18 October 2012, the second was based upon an interview by audiovisual link on 29 January 2013. Both experts drew attention, very properly, to the difficulty they had in expressing opinions as to Mr Grant's mental state in January 2009 based solely upon his interviews some four years later.

1. Ms Durkin said that Mr Grant described symptoms commensurate with the diagnosis of post-traumatic stress disorder (PTSD) in the period after August 2008 (he said that he was bedridden for at least two to three weeks after the assault in August 2008, he described hypervigilance (barricading his doors and windows) and hypersensitivity and difficulties with sleep). Ms Durkin made it clear that "Mr Grant does not meet criteria for PTSD currently".

1. Similarly, Dr Adams said that Mr Grant's account was "in my opinion in keeping with the diagnosis of post-traumatic stress disorder", but added:

"It must be borne in mind that my formulation of Mr Grant's clinical presentation at this time is based primarily upon his account, which in part is explained by the lack of collateral information due to Mr Grant reportedly not informing others of his mental state."

1. Both Ms Durkin and Dr Adams referred to Mr Grant's account of heavy consumption of alcohol after the attack in August 2008, and occasional cannabis use.

1. The starting point for the evaluation of proposed Ground 3 is that this is evidence which was not before the primary judge. Although the reports of 2012 and 2013 only came into existence after the sentencing, they are in the category of "new", as opposed to "fresh", evidence: they are directed to opinion evidence of Mr Grant's state of mind at the time he killed Mr Matheson. The probative value of the evidence is, plainly enough, diminished by the passage of time.

1. The matter was assigned to Mr Grant's current solicitor on 15 November 2010. The material before this Court does not disclose when the view was formed that this ground might be advanced; it discloses only that counsel had advised, some time prior to 4 October 2012, that a psychologist report be obtained. To the extent that there is any merit in the ground, it is a ground that required no exhaustive examination of the record before it could be investigated: it was obvious on the face of the tender list, or upon reading the transcript of the sentencing hearing or remarks, that no such expert evidence had been obtained. Given the lack of detail on this point in Mr Hanna's affidavit, which was directed to obtaining an extension of time, the Court proceeds on the basis that there was no good explanation for the extensive delay in obtaining expert evidence.

1. The applicable principles were reviewed in this Court in Monteiro v R [2011] NSWCCA 113, PFC v R [2011] NSWCCA 275, Winter v R [2013] NSWCCA 231 and Outram v R [2013] NSWCCA 329. All four judgments confirmed the continuing applicability of what Gleeson CJ had said in R v Birks (1990) 19 NSWLR 677 at 683 and 685:

"As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.

...

... As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

... However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

1. The question ultimately is whether what occurred or did not occur at the trial occasioned a miscarriage of justice: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [79] (McHugh J); Ali v The Queen [2005] HCA 8; 214 ALR 1 at [18] (Hayne J); Matthews v R [2013] NSWCCA 187 at [62].

1. In TKWJ, Gaudron J, with whom Gummow and Hayne JJ agreed, said (at [29]) that failures by defence counsel had traditionally been said to involve "flagrant incompetence", "egregious error", "extreme conduct" or "significant fault", but noted that the ultimate question was that posed by s 6(1) of the Criminal Appeal Act, namely, whether the act or omission resulted in a miscarriage of justice: at [30]-[31]. McHugh J made the same point at [83], after saying at [79]:

"The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, 'whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue'. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? ... The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial."

1. More recent decisions have emphasised that it is not ordinarily for the appellate court to review the decisions made by counsel at trial: Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [8]; KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503 at [51].

1. Most recently, these principles were considered by Schmidt J, with whom Beazley P and RA Hulme J agreed, in Tran v R [2014] NSWCCA 32, by reference to Khoury v R [2011] NSWCCA 118 at [104]-[110]. Those principles include:

1. The general principle that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks; R v Fordham (1997) 98 A Crim R 359 at 377.

2. That general principle applies no less to applications for leave to appeal against sentence than it does to conviction appeals: Khoury at [104].

3. The rule is far from absolute, particularly in criminal cases, having regard to the need to accommodate the interests of justice. A "distinct sub-set of principles" has evolved in relation to the admission and use of additional evidence on applications for leave to appeal against sentence: Khoury at [105].

4. "Fresh" evidence is evidence of which the accused was unaware at the time of his trial and which could not have been discovered with reasonable diligence: Lawless v The Queen (1979) 142 CLR 659 at 675; Khoury at [107]. "New" evidence is evidence which was available, or could with reasonable diligence have been obtained, at trial.

1. At [116]-[117] in Khoury, Simpson J said:

"[116] In Abbott, one relevant consideration was that the applicant had been incompetently represented, with the result that evidence that could have been available as to her psychiatric condition was not presented. Similar arguments were, on the facts, rejected in R v Goodwin (1990) 51 A Crim R 328 and Stumbles.

[117] Caution must be exercised in the admission of the evidence. As I have already indicated, in Lanham, it was held that a proper basis for the admission of the evidence must be established. In Ehrenburg, Loveday J, with whom Gleeson CJ agreed, described the case as "most unusual"; Samuels JA, who also agreed, cautioned against allowing sympathy to lead the Court, against its duty to the community, to make an error of principle. In Ashton, Howie J warned that the Court must be careful to maintain a principled approach in dealing with appeals before it, and be scrupulous to ensure that there is a proper basis for receiving evidence of events that occur after sentence where there is no error established in the sentence imposed."

1. In Khoury, the approach taken was that a combination of circumstances, principally the inadequacy of the legal advice given to the applicant, and the strength of the proposed evidence led to the evidence being received. That was a case where counsel had said that it "did not occur to him to call psychiatric evidence", and where it was not suggested that there was the level of incompetence referred to in Birks and Abbott. The evidence disclosed that Mr Khoury, who had functioned effectively as a parish priest, was of low level intellectual functioning, which Simpson J regarded "as an extremely relevant circumstance had it been made known to the sentencing judge": at [146].

1. In the present case, there is nothing to suggest that Mr Weller had failed in any material way to discharge his obligations to conduct the sentencing hearing. Moreover, the proposed new evidence is remarkable for its lack of probative value, not least because for reasons unexplained it has taken years to obtain it. Principally because of that delay, neither expert has been able to express a view that Mr Grant was suffering from a mental disorder in 2009; their evidence, in essence, is that years after the event he described to them symptoms consistent with PTSD.

1. Mr Grant has failed to make out a case for the belated reception of new evidence which was available at the sentencing hearing. Even if he had made out such a case, the evidence is not such as to indicate that there has been a miscarriage of justice. Leave should not be granted to raise this proposed ground of appeal.

Proposed Ground Four: was the sentence manifestly excessive?

1. In light of our conclusions in relation to Ground 2, and the need to resentence, it is unnecessary to determine this ground. The same issues (and more) fall to be considered by reason of s 6(3) of the Criminal Appeal Act 1912 (NSW). The same economical approach was adopted in Crawford v R [2013] NSWCCA 269 at [47] and HJ v R [2014] NSWCCA 21 at [83].

Proposed Ground Two: miscarriage of justice through wrong admission of intent to kill

1. It was entirely correct for the primary judge to ask Mr Weller, appearing for Mr Grant, whether his client intended to kill Mr Matheson or merely intended to cause grievous bodily harm. When Mr Weller, unequivocally, answered the former, it was entirely correct for his Honour to sentence on that basis. This proposed ground of appeal turns centrally on whether this Court can and should go behind what Mr Grant's former advocate told the Court. As earlier recounted, evidence on this issue from both Mr Grant and Mr Weller was given, and tested, in this Court.

1. It is best to return to first principles. The Crimes Act 1900 (NSW) defines murder and manslaughter in s 18. Relevantly, s 18(1) defines murder where the act of the accused causing the death charged was done with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm. However, other provisions provide that a killing which otherwise would amount to murder is to be treated as manslaughter; as was said in R v Lavender [2005] HCA 37; 222 CLR 67 at [2]:

"In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender's conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind."

1. In addition to ss 23 and 23A, which will result in conviction for manslaughter when there is provocation or substantial impairment by abnormality of mind, s 421 of the Crimes Act reflects a third species of voluntary manslaughter, namely where the excessive self-defence of the accused has caused a death. It is this section, which was enacted so as to reverse the change in law effected by Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, which is presently relevant. It applies, relevantly, where the person uses force that involves the infliction of death, and the conduct is not a reasonable response in the circumstances as he or she perceives them, but nevertheless the person believes the conduct is necessary to defend himself or herself or another person. In those circumstances, s 421(2) provides that:

"The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."

1. The operation of these provisions was most recently restated in Lane v R [2013] NSWCCA 317 at [50], where this Court said (emphasis added):

"For voluntary manslaughter to be proved, it is necessary that the Crown first prove all of the elements of murder ... With respect to s 23, if there is evidence that the act causing death was done or omitted to be done under provocation (as defined) the onus is on the prosecution to prove something additional - that the act was not done under provocation. Similarly, with respect to s 421, if the defence of self defence is raised, the onus is on the prosecution to prove that the act causing death was not done in self defence. The essential thing is that, before voluntary manslaughter can even be considered, all of the elements of murder must be proved."

1. Mr Grant's plea of guilty to manslaughter on the basis of excessive self-defence meant acceptance by Mr Grant that a reasonable person in his position would not have considered that his response was reasonable in the circumstances. Conversely, its acceptance by the Crown also meant that the Crown accepted the reasonable possibility that Mr Grant genuinely believed that it was necessary to shoot Mr Matheson in order to defend himself.

1. What is more, Mr Grant's plea of guilty also meant that he accepted that he held one of the mental states sufficient to amount to murder, but for the availability of s 421. That meant an acceptance that he intended to kill, or to cause grievous bodily harm to, Mr Matheson, or else had acted with reckless indifference (the latter may be put to one side for present purposes, having regard to the evidence adduced on this appeal). Hence his Honour's repeated questions of Mr Weller as to Mr Grant's intent, including the question "What was the specific intent for murder?"

1. Mr Grant was originally charged with murder, and subsequently, with manslaughter. Mr Weller was acting for him at all relevant times. The propositions in the previous two paragraphs are basic.

1. This proposed ground is not directed to some contestable forensic decision, such as whether to lead particular evidence from Mr Grant, or call a character witness, or cross-examine on a particular basis, where the difficulties referred to in the principles extracted above loom large. It is notoriously difficult to re-assess from the written record available to an appellate court the circumstances leading to such choices, and it is often the case that there is no axiomatically right or wrong approach to questions of that nature. This is one reason why, as Basten JA said in Lee v R [2013] NSWCCA 68 at [139], that "statements as to counsel's beliefs are of doubtful relevance" in an appeal.

1. To the contrary, proposed Ground 2 is directed to something which is basal. Mr Grant's plea necessarily accepted that he had killed Mr Matheson with an intent which, but for his excessive self-defence, would amount to murder. His state of mind at the time was crucially, and manifestly, relevant to sentence. His plea was consistent either with an intention to kill, or an intention to cause grievous bodily harm. The primary judge entirely properly and predictably asked Mr Weller for his position on that basic issue.

1. Yet the transcript conveys the impression that Mr Weller did not at the time of the sentencing hearing appreciate the distinction. Why else did the judge have to ask three times for the accused's intention before the answer "Well, he intended to kill, your Honour" was given? The impression gained from reading the exchange is that the question itself, and the fact that its answer was regarded as highly material by the sentencing judge, came as something of a surprise to Mr Weller.

1. That impression was confirmed by Mr Weller's evidence in this Court, salient aspects of which are reproduced above, and in particular his evidence that Mr Grant repeatedly stated that his primary intention was to stop Mr Matheson. The inference to be drawn is that Mr Weller did not explain to his client the distinction between the two states of mind, both of which were consistent with manslaughter, and also with wanting to stop his attacked, and did not obtain clear instructions on this basic issue.

1. That impression is in no way undermined by the cross-examination of Mr Grant on the nature of the instructions he gave and the circumstances in which they were given. Although Mr Grant was cross-examined extensively on his state of mind when he shot Mr Matheson, he was scarcely cross-examined on his evidence (notably, paragraph 8 of his affidavit of 31 October 2012, reproduced above) directed to what he had been told by Mr Weller and the instructions he gave.

1. It is not necessary for the purposes of this appeal to resolve the dispute between Mr Weller and Mr Grant as to whether the latter said that it was a "kill or be killed" situation. Let it be assumed, favourably to Mr Weller, as he repeatedly maintained (to the extent of saying he had an actual recollection), that that was how Mr Grant put it. We accept Mr Weller's evidence that "[t]hat was the extent of the instructions" and that, consequently, Mr Weller was exercising his own judgment in conveying to the primary judge that his client had an intention to kill.

1. The conclusion drawn by Mr Weller based on those instructions was not an inevitable one. "Kill or be killed" is a colloquial and evocative turn of phrase which is often used metaphorically rather than literally. It connotes a state of mind whereby Mr Grant felt that he was fighting for his life; cf R v Jones [2007] NSWSC 1333 at [76] and needed to stop Mr Matheson. But it does not inevitably connote that Mr Grant intended to kill his attacker.

1. We also reject the Crown submission, advanced in writing, that in the circumstances of this case, an intention to cause grievous bodily harm as opposed to an intention to kill was "not material of such significance that the sentencing judge would have regarded it as having a real bearing upon his decision". To be fair, counsel for the Crown made no attempt orally to support it.

1. Generally, an intention to kill reflects greater culpability than an intention to cause grievous bodily harm: Apps v R [2006] NSWCCA 290 at [49]. Whilst that is not inevitably so: see R v Hillsley [2006] NSWCCA 312 at [16], it is difficult to contemplate a case of excessive self-defence on the offender's own property where his or her state of mind would not be material. But in any event, it is clear that in the circumstances of this case, the gravity of Mr Grant's offence was affected by whether he intended to stop Mr Matheson's attack by killing him, or by causing him grievous bodily harm.

1. Here it was basic that Mr Weller had to obtain clear instructions about his client's state of mind. That did not occur. The primary judge was satisfied of an intention to kill because of Mr Weller's statement. That intention was not something otherwise proven beyond reasonable doubt, bearing in mind the circumstances of the shooting. Although the firing of two shots to the chest was consistent with such an intent, it was also consistent with Mr Grant's evidence in this Court, namely, an intent to cause grievous bodily harm so as to prevent Mr Matheson's imminent attack. Mr Grant's intent was material to the sentence imposed by his Honour. Mr Grant was entitled, on this basic point, to have his position correctly conveyed to the primary judge. There was in the circumstances a miscarriage of justice engaging the principles referred to in dealing with proposed Ground 3 above. In our view this ground is made out.

Is a lesser sentence warranted in law and resentencing

1. On any view, this was a serious case of manslaughter. The occasion for the manslaughter came about because of Mr Grant's decision to grow commercial quantities of cannabis. As the primary judge put it "Matheson wasn't going to come back, if he uprooted the crop and went back to strawberries". The decision to purchase a pistol, and ammunition, was a deliberate one. It was accompanied by a decision to acquire surveillance cameras.

1. The primary judge said, with respect entirely correctly, that:

"[Mr Grant] could, by destroying or abandoning the crop or by reporting the matter to the authorities, have forestalled the confrontation he believed would arise. Instead, he took measures highly likely to lead to injury or death. It was carried out as part of a plan to protect a commercial criminal interest. It involved the use of a firearm."

1. Mr Matheson's death was immediately followed by deliberately dealing with the body in a way calculated to prevent a proper investigation of the circumstances of death. For that reason, the primary judge made the sentence on the count of wrongfully dealing with the body concurrent with the non-parole period of the sentence for manslaughter, but the same considerations heighten the seriousness of the manslaughter offence.

1. The maximum penalty for manslaughter is imprisonment for 25 years: Crimes Act, s 18(1)(b). There is no established range of sentences for manslaughter. The crime is "almost unique in its protean character as an offence": R v Forbes [2005] NSWCCA 377 at [133].

1. In determining the question posed by s 6(3) of the Criminal Appeal Act, namely, whether a lesser sentence is required in law, this Court must have regard to evidence before it post-dating the sentencing hearing: Douar v R [2005] NSWCCA 154; 159 A Crim R 154. That evidence discloses that Mr Grant has been in prison for slightly more than five years, since 12 February 2009. He is now 56. He has not committed any prison offences, and has made steady advances in classification. He was diagnosed, in 2013, with a benign brain tumour, which may require surgery in order to prevent it pressing upon his optic nerve. He has also been diagnosed with Addison's disease, which requires treatment with medication (with which he has been supplied while in prison).

1. Those matters, coupled with the consideration that Mr Grant should be sentenced on the basis that he intended to cause grievous bodily harm to the deceased, lead us to conclude that a lesser sentence than the 12 years imposed for Mr Matheson's death is warranted by law. That sentence will nevertheless reflect the fact that this was a serious case of manslaughter, that a man's life has been taken, that it only occurred through Mr Grant's long term plan to profit from serious criminal activity, and that the potential for causing grievous bodily harm was brought about by his acquisition of a pistol and ammunition. Mr Grant's crime warrants denunciation, considerations of general deterrence are significant, and the substantial harm done to the victim and the community should be reflected in this Court's sentence.

1. On the other hand, Mr Grant is now 56 and is unlikely to re-offend. His offer to plead guilty to manslaughter was made at an early stage, and he is entitled to the maximum allowance for the utilitarian value of the plea.

1. Like the sentencing judge, we do not think that special circumstances have been made out to warrant a longer non-parole period. He was not a person of good character. The primary judge found that he was a serious producer of cannabis, from whom the New South Wales Crime Commission extracted $20,000 by way of criminally derived assets. In this Court, Mr Grant said that he paid $60,000, plus $20,000 cash, in legal fees to Mr Weller. Although Mr Grant's illnesses if they were more serious might tend to support a finding of special circumstances, the evidence is that at present he is receiving adequate medical treatment within the prison system.

1. The primary judge accumulated the manslaughter sentence so that it overlapped very substantially with the cultivation sentence. Since this appeal is confined to the manslaughter sentence, there is no occasion to depart from his Honour's decision, nor did Mr Grant contend that this Court should do so.

1. For this reason, we grant leave in respect of Ground 2, allow the appeal and set aside the manslaughter sentence imposed on 15 September 2010. The sentence this Court imposes is one of imprisonment for a period of 10 years, commencing from 13 February 2011. The non-parole period is 7 years and 6 months, commencing 13 February 2011 and expiring on 12 August 2018. The balance of the term is 2 years and 6 months, expiring 12 February 2021. The earliest date upon which Mr Grant is eligible for release to parole is 12 August 2018.

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Amendments

05 May 2014 - Font size of last two lines of [18] has been amended.

Amended paragraphs: 18

Decision last updated: 05 May 2014