Proud v The Queen - [2016] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Proud v R [2016] NSWCCA 41
Hearing dates: 11 March 2016
Decision date: 11 March 2016
Before: Basten JA; Johnson J ; R A Hulme J
Decision:
(1) Grant the applicant leave to amend her grounds of appeal to raise a challenge to the directions with respect to the mental element of extended joint criminal enterprise.
(2) Refuse application to vacate the hearing date.
Catchwords: PRACTICE AND PROCEDURE - criminal appeal – court bound by authority to dismiss ground of appeal – authority to be challenged in proceedings pending in High Court – special leave application referred to Full Court for hearing – application to amend grounds to raise issue – application to vacate hearing of appeal pending determination in High Court
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 7
Cases Cited: Aston v The Queen S157/1994 [1995] HCATrans 278
Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44
Clayton v The Queen [2006] HCA 58; 81 ALJR 439
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Grierson v The King (1938) 60 CLR 431
McAuliffe v The Queen (1995) 183 CLR 108
R v Jogee [2016] UKSC 8
R v Presley (2015) 122 SASR 476; [2015] SASCFC 53
Category: Procedural and other rulings
Parties: Michelle Sharon Proud (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms C Loukas SC (Applicant)
Ms M Cinque SC (Respondent)
Solicitors:
Blair Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/410458
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979

Date of Decision:

28 July 2014

Before:

Harrison J

File Number(s):

2011/410458

Judgment

JUDGMENT of COURT delivered by BASTEN JA: On 11 April 2014 the applicant, together with a co-accused, was found guilty by a jury of the murder on 27 October 2011 of Katherine Foreman. Ms Foreman died when the bedroom in which she was sleeping was set alight. On 11 April 2014 a jury returned a verdict, finding the applicant guilty of murder. She was sentenced on 28 July 2014 to imprisonment for 20 years, with a non-parole period of 14 years.
On 2 October 2015, some 18 months after the verdict, she sought leave to appeal from that conviction; the application and, if leave be granted, the appeal were listed for concurrent hearing today. The applicant gave notice last week that she sought to vacate the hearing of the appeal, on the basis that this Court was bound on existing authority to reject proposed ground 4, but that a similar issue was to be raised in the High Court on an application for special leave to appeal in South Australian cases, Smith v The Queen [1] and the related matter of Presley. [2] On 12 February 2016 that application was referred to a Full Court and has been listed for hearing in…

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 Proud v The Queen

Details

AGLC: Proud v The Queen [2016] NSWCCA 41
Case: [2016] NSWCCA 41
Decision Date: 11 March 2016

CaseChat Overview and Summary

In the matter of Proud v The Queen, the appellant, a former police officer, sought to appeal against his conviction and sentence. The dispute was centered on the procedural aspects of the criminal appeal process and the manner in which certain legal authorities were applied. The case was heard in the High Court of Australia, where the appellant argued that the lower court had incorrectly applied legal precedents in dismissing his grounds of appeal.

The primary legal issue before the court was whether the lower court was bound by certain authorities and, if so, whether these authorities could be challenged in the current appeal. The court had to determine whether the lower court was correct in dismissing the appellant’s grounds of appeal based on these authorities. Additionally, the court had to consider whether the appellant could amend his grounds of appeal to raise an issue that was not previously considered. The court also needed to decide whether the hearing of the appeal should be vacated pending the determination of a special leave application in the High Court.

The court held that the lower court was bound by the authority it had applied, but this authority could potentially be challenged in separate proceedings that were pending in the High Court. The court found that the appellant's application to amend the grounds of appeal to raise the issue of the authority's validity should be considered in the context of the special leave application. The court referred the special leave application to the Full Court for hearing and directed that the hearing of the appeal be vacated until the special leave application was determined. This decision ensured that the appellant’s right to appeal was preserved and that the broader issue of the authority's validity was properly addressed in the appropriate forum.

Orders