Meagher JA at [1]; Davies J at [1]; Fagan J at [107]
Decision:
1. The time for the appellant to give notice of the appeal on grounds 1, 2 and 3 be extended to 5pm on 17 June 2016. 2. The time for the appellant to give notice of the appeal on ground 4 be extended to 5pm on 18 October 2016. 3. Grant the appellant leave to appeal on grounds 1 and 4. 4. Dismiss the appeal against conviction on grounds 1, 2, 3 and 4.
Catchwords:
CRIME – conviction appeal – manslaughter – where two separate acts of the appellant relied on as constituting the voluntary act causing death – whether trial judge erred in not directing jury that they could not convict unless they were unanimous as to the voluntary act or acts which resulted in their verdict – whether proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) applicable
CRIME – conviction appeal – manslaughter – where references by Crown before jury to “king hit” offence and where handwritten material found in jury room at conclusion of trial which urged the stopping of “coward” punches – whether “miscarriage of justice” within third limb of s 6(1) – whether reasonable basis for apprehending that the jury or a juror had not discharged task impartially
CRIME – conviction appeal – manslaughter – where note containing extracts of dictionary definitions including “murder” and “manslaughter” found in jury room at conclusion of trial – whether miscarriage of justice – whether reasonable basis for apprehending that a juror had not considered the evidence and the charges made in accordance with the directions of the trial judge
CRIME – conviction appeal – manslaughter – written directions to jury including “question trail” – whether formulation of questions relating to self-defence confusing and reversed or distorted onus of proof
EVIDENCE – criminal appeal – exclusionary rule of evidence as to deliberations of jury – Evidence Act 1995 (NSW) s 9(2) – whether evidence as to provenance of notes and writing on magazines covers, and whether they came to the attention of jurors, admissible
Legislation Cited:
Crimes Act 1900 (NSW), ss 18(2), 419, 421 Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules, rr 4, 25A Criminal Code 1899 (Qld) Evidence Act 1995 (NSW), s 9(2) Jury Act 1977 (NSW), s 73A
[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.
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AGLC
Lane v R [2017] NSWCCA 46
Case
[2017] NSWCCA 46
Decision Date
CaseChat Overview and Summary
In the matter of Lane v The Queen, the appellant, Lane, appealed his conviction for manslaughter. The appellant argued that the trial judge had erred in not directing the jury that they could not convict unless they were unanimous as to the voluntary act or acts which resulted in their verdict. Additionally, the appellant submitted that there were instances of potential prejudice during the trial which might have contributed to a miscarriage of justice. The appellant also challenged the clarity of the written directions given to the jury, asserting that they confused the jury regarding the onus of proof. The appeal was heard in the Court of Criminal Appeal of New South Wales.
The primary legal issues in the case revolved around whether the trial judge made an error in not instructing the jury on unanimity regarding the voluntary act or acts that led to the verdict. Another key issue was whether there was a miscarriage of justice due to the presence of handwritten material in the jury room and a note containing dictionary definitions found in the jury room at the conclusion of the trial. Additionally, the court had to determine whether the written directions given to the jury confused them and reversed or distorted the onus of proof. The admissibility of evidence regarding the provenance of notes and writings found in the jury room was also a point of contention.
The Court of Criminal Appeal considered the arguments presented by the appellant and found that the trial judge did not err in not directing the jury on unanimity regarding the voluntary act or acts. The court held that there was no reasonable basis for apprehending that the jury or a juror had not discharged their task impartially, despite the presence of the handwritten material and the note in the jury room. The court found that the written directions to the jury did not confuse them and did not reverse or distort the onus of proof. Finally, the court held that evidence as to the provenance of notes and writings in the jury room was not admissible under the exclusionary rule of evidence outlined in the Evidence Act 1995 (NSW) s 9(2).
The appeal was dismissed, and the conviction for manslaughter was upheld.