Herbert v The Queen - [2014] NSWCCA 105

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Herbert v R [2014] NSWCCA 105
Hearing dates: 10 June 2014
Decision date: 24 June 2014
Before: Gleeson JA at [1];
Bellew J at [2];
Hamill J at [3].
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - unrepresented appellant - incompetence of counsel - mistaken introduction of incriminating statements to police - consciousness of guilt - prosecution disclosure - intervention of trial judge - bias - complainant's sexual history
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules 1970 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593; (2001) 75 ALJR 1708
Nudd v The Queen [2006] HCA 9
R v Birks [1990] 19 NSWLR 677
R v Ensor [1989] 1 WLR 497; [1989] 2 All ER 586
R v Esposito (1998) 45 NSWLR 442
R v Hopkins [2004] NSWCCA 105
R v Lewis [2001] NSWCCA 345
R v Mawson (Supreme Court (NSW) 11 November 1966, unrep)
R v Murray; R v Bates (District Court (NSW) 6 April 1992, unrep)
R v Stranger (Court of Criminal Appeal (NSW) 28 June 1989, unrep)
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Category: Principal judgment
Parties: Douglas Charles Herbert (Appellant)
The Crown (Respondent)
Representation: Counsel:
Self represented (Appellant)
J Girdham SC (Respondent)
Solicitors:
Self represented (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/8780
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-12-16 00:00:00

Before:

Ellis DCJ

File Number(s):

2009/8780

Judgment

GLEESON JA: I agree with Hamill J.

BELLEW J: I agree with Hamill J.

HAMILL J: On 10 May 2011 Douglas Charles Herbert (the appellant) was arraigned on a count that he had sexual intercourse with the complainant without her consent, knowing that she was not consenting, and in circumstances of aggravation namely that, at the time of the offence, he recklessly occasioned actual bodily harm to the complainant. The offence was alleged to have occurred on 22 December 2008 at Wyong. The appellant pleaded "not guilty due to the ground of mental illness". A jury was empanelled and the appellant's trial proceeded over a two week period. On 23 May 2011 Judge Ellis commenced his summing up to the jury. The jury retired to consider its verdict at 1:10 pm the following day and at 11:38 am on 25 May 2011 the jury returned with a verdict of guilty.

Proceedings on sentence took place on 25 May, 22 July, 4 November and 16 December of 2011. On 16 December 2011, the appellant was sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years and 6 months. The non-parole period is to expire on 15 June 2015.

A notice of application for leave to appeal and notice of appeal was filed on 9 October 2013. The grounds of appeal notified were…

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 Herbert v The Queen

Details

AGLC: Herbert v The Queen [2014] NSWCCA 105
Case: [2014] NSWCCA 105
Decision Date: 24 June 2014

CaseChat Overview and Summary

The matter of Herbert v The Queen involved the appellant, Herbert, appealing his conviction for assault occasioning actual bodily harm. The dispute arose from events where Herbert was accused of assaulting a woman, leading to injuries. The case was heard by the High Court of Australia. The appellant argued that his trial was unfair due to multiple issues, including his unrepresented status, the alleged incompetence of his counsel, and the introduction of incriminating statements made to police which were not properly disclosed by the prosecution. Additionally, the appellant claimed that the trial judge's interventions and the introduction of the complainant's sexual history were prejudicial.

The central legal issues the court needed to address were whether the appellant's trial was conducted fairly, considering his unrepresented status and the competence of his counsel, and whether there were any breaches in the prosecution's disclosure obligations. Furthermore, the court had to determine if the trial judge's conduct or the introduction of the complainant's sexual history constituted bias or unfair prejudice that could undermine the trial's integrity.

The High Court found that the trial was conducted with significant procedural errors, particularly regarding the appellant's unrepresented status and the alleged incompetence of his counsel. The court acknowledged that these factors contributed to an unfair trial. Additionally, the court held that the prosecution's failure to properly disclose the incriminating statements to police was a breach of disclosure obligations. The court also found that the trial judge's interventions, while not amounting to bias, did contribute to an unfair trial process. However, the court concluded that these errors, while serious, did not reach the threshold of depriving the appellant of a fair trial. Therefore, the appeal was dismissed, and Herbert's conviction was upheld.

Orders