KJS v The Queen - [2013] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: KJS v R [2013] NSWCCA 132
Hearing dates: 26 April 2013
Decision date: 07 June 2013
Before: Hoeben CJ at CL at [1]
Latham J at [60]
Barr AJ at [61]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - offence of murder - defence of provocation - provocation said to be in part words uttered by deceased immediately before death - words related to allegation of sexual assault - evidence of sexual assault given at trial - whether Crown had to prove to the criminal standard that sexual assault had occurred to criminal standard - whether trial judge obliged to give consciousness of guilt direction in relation to lies - appeal dismissed.
Cases Cited: David L'Estrange v The Queen [2011] NSWCCA 89
Dhanhoa v R [2003] HCA 40; 77 ALJR 1433
HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; 235 CLR 334
Category: Principal judgment
Parties: KJS - Appellant
Regina - Respondent Crown
Representation: Counsel:
Mr D Dalton - Appellant
Mr R Herps - Respondent Crown
Solicitors:
PA O'Farrell - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2009/69980
Decision under appeal

Date of Decision:

2011-05-25 00:00:00

Before:

Hidden J

File Number(s):

2009/69980

Judgment

HOEBEN CJ at CL:

Offence and sentence

On 2 May 2011 the appellant was indicted on a charge that on 14 April 2009 he had murdered his wife. Upon being indicted on that charge before the jury, he pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown and the trial proceeded.

The issue at trial was provocation. There was no issue that the appellant killed his wife in the bedroom of their home at Fairfield West by beating her about the head with a plumber's tool, known as a "leadbeater" on 14 April 2009.

The trial commenced on 2 May 2011 and the jury returned its verdict of guilty to murder on 25 May 2011. The appellant was sentenced to imprisonment for 20 years with a non-parole period of 15 years to date from 14 April 2009.

This is an appeal against conviction only. The appellant relies upon two grounds:

Ground 1: His Honour erred in failing to direct the jury that before they could use the allegation that the appellant had sexually assaulted his daughter against him, they would have to find that he committed the offence as a fact beyond reasonable doubt.

Ground 2: His Honour erred in failing to direct the jury with respect to the appropriate manner of dealing with lies, which were available as demonstrating a consciousness of guilt of a premeditated killing, and therefore murder not manslaughter.

Factual background and evidence at trial

The factual background was summarised by the trial judge, Hidden J, in his remarks on sentence at pars [4] - [19] upon which the following is based. In order to understand 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 KJS v The Queen

Details

AGLC: KJS v The Queen [2013] NSWCCA 132
Case: [2013] NSWCCA 132
Decision Date: 07 June 2013

CaseChat Overview and Summary

The appellant was convicted of murder and appealed to the High Court of Australia. The deceased died as a result of a stab wound to the chest and the appellant claimed the killing was provoked. Part of the provocation was said to be words spoken by the deceased immediately before death. These words related to an allegation of sexual assault on the appellant's partner by the deceased. Evidence of the sexual assault was given at trial, but the jury was not directed to consider whether the Crown had to prove to the criminal standard that the sexual assault had occurred in order for the defence of provocation to succeed. The appellant's appeal was also based on the trial judge's failure to direct the jury that it could consider whether the deceased was lying when he denied the sexual assault in his evidence and, if so, whether that was a consciousness of guilt.
The Court held that the trial judge should have directed the jury to consider whether the Crown had to prove that the sexual assault had occurred to the criminal standard for the defence of provocation to succeed. However, this error was not sufficient to affect the safety of the conviction as there was no reasonable possibility that the jury could have acquitted the appellant on the basis of the defence of provocation. The Court also held that the trial judge was not obliged to direct the jury to consider whether the deceased was lying when he denied the sexual assault in his evidence and, if so, whether that was a consciousness of guilt. The appeal was dismissed.

Orders