Moore v R

Case [2016] NSWCCA 185


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Moore v R [2016] NSWCCA 185
Hearing dates:15 July 2016
Decision date: 23 August 2016
Before: Basten JA at [1];
R A Hulme J at [93];
Adamson J at [137]
Decision:

(1)   Grant the applicant leave to appeal against his conviction for the murder of Dennis Burns.

 

(2)   Dismiss the appeal against conviction.

 

(3)   Grant the applicant leave to appeal from the sentence imposed on him for the said murder.

 (4)   Dismiss the appeal against sentence.
Catchwords:

CRIME – conviction appeal – murder – jury direction – directions on self-defence – question trail – whether formulation of test of self-defence in question trail confusing – whether question trail improperly shifted burden of proof from prosecution – whether question trail allowed for alternative manslaughter conviction

 

CRIME – sentence appeal – manifestly excessive – whether offence part of planned criminal activity - whether aggravating factor incorrectly identified in statute constitutes material error – whether provocation as mitigating factor in sentencing – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n), s 21A(3)(c)

  CRIME – standard of proof – whether reference in trial judge’s directions to “reasonable possibility” undermined the standard of proof beyond reasonable doubt
Legislation Cited: Crimes Act 1900 (NSW), ss 23, 418, 419, 421
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; Pt 4, Div 1A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules, r 4
Cases Cited: Aubrey v R [2015] NSWCCA 323
B v R [2015] NSWCCA 103
Crawford v R [2008] NSWCCA 166
Demirok v The Queen (1977) 137 CLR 20
Fahs v R [2007] NSWCCA 26
Gilbert v The Queen [2000] HCA 15; 201 CLR 414
Green v The Queen (1971) 126 CLR 28
H v R [2016] NSWCCA 63
Jubraeel v R [2015] NSWCCA 131
Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
Kanaan & Ors v R [2006] NSWCCA 109
Knight v The Queen (1992) 175 CLR 495
Martin v Osborne (1936) 55 CLR 367
McKinney v The Queen; Judge v The Queen [1991] HCA 6; 171 CLR 468
Murray v The Queen [2002] HCA 26; 211 CLR 193
Oblach v R [2005] NSWCCA 440; 65 NSWLR 75
Palmer v The Queen [1971] AC 814
Peacock v The King (1912) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
R v Abusafiah (1991) 24 NSWLR 531
R v Ayoub [2004] NSWCCA 209
R v Dziduch (1990) 47 A Crim R 378
R v Fahda [2013] NSWCCA 86
R v Jacobs [2009] NSWSC 235
R v Jones (1995) 38 NSWLR 652
R v Katarzynski [2002] NSWSC 613
R v Katarzynski [2005] NSWCCA 72
R v Merrett, Piggott & Ferrari [2007] VSCA 1
R v Reeves (1992) 29 NSWLR 109
R v Youssef (1990) 50 A Crim R 1
RL v R [2015] NSWCCA 106
The Queen v Hillier [2007] HCA 13; 228 CLR 618
Thomas v The…

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Moore v R [2016] NSWCCA 185
Case
[2016] NSWCCA 185
Decision Date

CaseChat Overview and Summary

In the matter of Moore v R, the appellant was convicted of murder by a jury in the Supreme Court of New South Wales. The appeal against conviction and sentence was heard by the Court of Criminal Appeal. The appellant was convicted of the murder of the victim and subsequently sentenced to life imprisonment. The central issues in the appeal were the adequacy of the trial judge's directions to the jury regarding self-defence, the appropriateness of the sentence imposed, and the standard of proof applied in the trial.

The court examined whether the trial judge's formulation of the test for self-defence in the question trail was confusing and whether it improperly shifted the burden of proof from the prosecution. The court considered whether the question trail allowed for an alternative conviction of manslaughter. The court concluded that the trial judge's directions were not confusing and appropriately allowed for the consideration of self-defence and manslaughter. The appeal against conviction was dismissed. The court also considered whether the sentence imposed was manifestly excessive and whether certain aggravating factors were correctly identified. The court found no material error in the identification of aggravating factors and concluded that the sentence was not manifestly excessive. Regarding the standard of proof, the court held that the reference to "reasonable possibility" in the trial judge's directions did not undermine the standard of proof beyond reasonable doubt.

The Court of Criminal Appeal dismissed the appeal against conviction and sentence. The conviction and sentence were affirmed.

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