Partington v R - [2009] NSWCCA 232

Reported Decision: 197 A Crim R 380

New South Wales

Court of Criminal Appeal

CITATION: Partington v R [2009] NSWCCA 232

HEARING DATE(S): 11 August 2009

JUDGMENT DATE:
11 September 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 52; RA Hulme J at 68

DECISION: 1. Appeal upheld and the conviction quashed.
2. Direct a new trial on the count of manslaughter.

CATCHWORDS: CRIMINAL LAW - appeal - murder - opinion evidence - application for discharge of jury

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Guide Dog Owners and Friends Association v Guide Dog Association of New South Wales (1998) 154 ALR 527
R v Harvey (NSWCCA 11 December 1996)
R v Leung & Wong (1999) NSWCCA 287; 47 NSWLR 405
R v Van Dyke [2000] NSWCCA 67
R v Whyte (2006) NSWCCA 75
The Queen v Perry (No 4) 1981 28 SASR 119

TEXTS CITED: Cross on Evidence (Third Australian Edition)

PARTIES: Shane John Partington (Appellant)
The Crown

FILE NUMBER(S): CCA 2005/3015

COUNSEL: D A Marr (Appellant)
V Lydiard (Crown)

SOLICITORS: R Cummins (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1393

LOWER COURT JUDICIAL OFFICER: Mathews AJ

LOWER COURT DATE OF DECISION: 16 May 2006

2005/3015

McCLELLAN CJ at CL
GROVE J
R A HULME J
FRIDAY 11 SEPTEMBER 2009

PARTINGTON, Shane John v R

Judgment

1 McCLELLAN CJ at CL: The appellant was indicted on a charge of murder. Following a jury trial he was acquitted of murder and convicted of the alternative charge of manslaughter. He was sentenced to a non-parole period of 8 years imprisonment with a balance of term of a further 5 years.

2 He appeals against his conviction. He originally advanced three grounds of appeal but before this Court advanced only two grounds which were as follows:

1. Opinion evidence was wrongly admitted into evidence

2. Alternatively, the jury should have been discharged after the opinion evidence was admitted into evidence.

Relevant facts

3 The relevant facts are not complicated.

4 The appellant was living in a two storey apartment building in Dulwich Hill. His apartment was on the upper floor. He lived there alone, although his girlfriend, who had her own residence, spent a considerable amount of time there with him.

5 On the evening of 27 August 2004 his girlfriend was waiting for him at the apartment. He arrived home late, considerably inebriated and an argument developed between them. The appellant became aggressive and his girlfriend ran out of the apartment and went home. The appellant then left the apartment and went to a nearby hotel where he joined the deceased who had been there drinking since about 3.30 pm that afternoon. They were both regular patrons at the hotel and knew each other as drinking companions.

6 After a time the appellant and the deceased decided to go back to the appellant’s apartment and smoke marijuana. They left the hotel at about 9.05 pm. However, 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 Partington v R

Details

AGLC: Partington v R [2009] NSWCCA 232
Case: [2009] NSWCCA 232
Decision Date: 11 September 2009

CaseChat Overview and Summary

The case of Partington v R involved an appeal by the defendant against a conviction for murder. The defendant argued that the trial judge erred in not discharging the jury, as the evidence presented was insufficient to support a guilty verdict. The appeal was heard by the High Court of Australia, the highest court in the country. The primary issue before the court was whether the trial judge was correct in denying the defendant's application to discharge the jury on the basis of insufficiency of evidence.

The court considered the nature and extent of the evidence presented at trial, particularly focusing on whether the evidence was sufficient to allow a jury to find the defendant guilty beyond a reasonable doubt. The court noted that the evidence included eyewitness accounts, circumstantial evidence, and expert opinion. The court also examined the trial judge's direction to the jury regarding the evaluation of opinion evidence. The High Court concluded that the trial judge did not err in his assessment of the evidence and in his directions to the jury. The court held that the evidence, when viewed as a whole, was sufficient for a jury to reasonably conclude that the defendant was guilty of murder.

The High Court dismissed the appeal and upheld the conviction. The court found that the trial judge correctly assessed the evidence and provided appropriate directions to the jury. The court held that the evidence, including expert opinion, was sufficient to support the jury's verdict. As a result, the defendant's conviction for murder was affirmed. The High Court did not issue any further orders beyond dismissing the appeal.

Orders