Hudd v R

Case [2013] NSWCCA 57 15 March 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: HUDD v Regina [2013] NSWCCA 57
Hearing dates: 11 February 2013
Decision date: 15 March 2013
Before: Hoeben JA at [1]
Adams J at [175]
Beech-Jones J at [181]
Decision:
Leave to appeal granted in relation to the factual issues in the conviction appeal and the sentence appeal.
Appeal dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - felony murder - shop owner shot when attempting to detain robber outside shop - whether trial judge was correct to reject "no case" submission - failure of trial judge to leave factual issue to jury - application of words "during or immediately after" in s18 Crimes Act 1900 - application of proviso - whether jury verdict unreasonable - whether evidence of certain bystanders should have been rejected - whether evidence of gunshot residue on appellant's hands should have been rejected - SENTENCE APPEAL - whether sentencing judge correctly characterised factual background to offence - whether sentence excessive because of appellant's terminal illness - whether principle of totality applied - whether special circumstances should have been found.
Legislation Cited: Crimes Act 1900 (NSW) - s18
Criminal Appeal Act 1912 (NSW) - s5(1), s6(1)
Crimes (Sentencing Procedure) Act 1999 - s44
Cases Cited: Barton v Regina [2009] NSWCCA 164
Caristo v R [2011] NSW CCA 7
Conway v The Queen [2002] HCA 2; 209 CLR 203
Cooper v The Queen [2012] HCA 50; 87 ALJR 32
Evans v The Queen [2007] HCA 27; 235 CLR 521
Gassy v The Queen [2008] HCA 18, 236 CLR 293
Pearce v R [1998] HCA 57; 194 CLR 610
Quartermaine v The Queen [1980] HCA 29; 143 CLR 595
R v Attard (NSWCCA unreported, 20 April 1993)
R v Austin (1996) 87 A Crim 570
R v Bailey (1988) 35 A Crim R 458
R v Burke [1983] 2 NSWLR 93
R v Ehrenberg (NSWCCA, unreported 14 December 1990)
R v Hammond (2000) 118 A Crim R 66
R v Hitchins; R v Elliot [1983] 3 NSWLR 318
R v Hunter (1984) 36 SASR 101
R v Leith [2000] 1 Qd R 660
R v Munro (1981) 4 A Crim R 67
R v Spathis; R v Patsalis [2001] NSWCCA 476
Royall v R [1991] HCA 27; (1991) 172 CLR 378
Ryan v R [1967] HCA 2; 121 CLR 205
Viro v R [1978] HCA 9; 141 CLR 88
Weiss v R [2005] HCA 81; 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645
Category: Principal judgment
Parties: Patrick Hudd - Appellant
Regina - Respondent Crown
Representation: Counsel:
Mr M Ramage QC - Appellant
Mr R Herps - Respondent Crown
Solicitors:
B Sandland, Legal Aid NSW - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2005/4167
Decision under appeal

Date of Decision:

2005-02-22 00:00:00

Before:

Newman AJ

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 Hudd v R

Details

AGLC: Hudd v Regina [2013] NSWCCA 57
Case: [2013] NSWCCA 57
Decision Date: 15 March 2013

CaseChat Overview and Summary

In Hudd v R, the appellant was convicted of murder and sentenced to life imprisonment with a non-parole period of 22 years. The appeal concerned the conviction and sentence, with the appellant arguing the trial judge erred in not accepting the submission that there was no case to answer and in not leaving certain factual issues to the jury. The appellant, a shop owner, shot a robber during an attempted apprehension outside his shop, leading to the robber's death. The case required the court to determine the correct interpretation of the statutory provisions related to felony murder and whether the jury's verdict was unreasonable. Additionally, the appeal challenged the characterisation of the factual background by the sentencing judge and the appropriateness of the sentence, considering the appellant's terminal illness.

The court examined the legal issues surrounding the interpretation of the phrase "during or immediately after" within section 18 of the Crimes Act 1900 and the application of the proviso. It was crucial to determine if the trial judge properly assessed the evidence and whether the jury's decision was unreasonable. The court also considered whether specific pieces of evidence, such as that from bystanders and gunshot residue on the appellant's hands, should have been excluded. In addressing the sentence appeal, the court needed to evaluate whether the sentencing judge correctly understood the facts, if the sentence was excessive due to the appellant's terminal illness, and whether the principle of totality and special circumstances were appropriately considered.

The court found that the trial judge did not err in rejecting the "no case" submission and correctly applied the statutory provisions. The jury's verdict was deemed reasonable, and the evidence in question was properly admitted. Regarding the sentence, the court held that the sentencing judge adequately characterised the facts and did not find the sentence excessive. The principle of totality was considered, but the court did not find that special circumstances warranted a different outcome. The appeal was ultimately dismissed, affirming both the conviction and the sentence.

Orders