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Proud v The Queen (No 2)

Proud v The Queen (No 2)

Case [2016] NSWCCA 44 21 March 2016

Appeal

Misdirection

Conviction

Joint Criminal Enterprise

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Proud v R (No 2) [2016] NSWCCA 44
Hearing dates: 11 March 2016
Decision date: 21 March 2016
Before: Basten JA at [1];
Johnson J at [5];
R A Hulme J at [6]
Decision:
1. Appeal against conviction upheld.
2. The appellant’s conviction and sentence for the murder of Katherine Foreman are quashed.
3. Pursuant to s 8 of the Criminal Appeal Act 1912 there be a new trial.

Catchwords: CRIMINAL LAW – conviction appeal – murder – joint criminal enterprise – jury warned about potential unreliability of appellant’s evidence as someone who might reasonably be supposed to have been criminally concerned – warning erroneous where evidence not relied upon by Crown against co-accused – misdirection had capacity to deflect jury from its task – attempted clarification ineffective – conviction quashed CRIMINAL LAW – conviction appeal – no error in not directing as to “participation” in joint criminal enterprise – verdict not unreasonable or unsupported by evidence – ground of appeal added in anticipation of possible reconsideration by High Court of requisite mental state for extended joint criminal enterprise – court presently bound by existing authority – new ground rejected
Legislation Cited: Crimes Act 1900 (NSW) ss 345, 346, Pt 9
Criminal Appeal Act 1912 (NSW) ss 6(1), 8
Criminal Appeal Rules r 4
Criminal Code (Qld) s 668E(1)
Evidence Act 1995 (NSW) s 165
Cases Cited: Alford v Magee [1952] HCA 3; 85 CLR 437
ARS v R [2011] NSWCCA 266
Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; 245 CLR 257
Huynh v The Queen; Duong v The Queen; Sem v The Queen [2013] HCA 6; 87 ALJR 434
Jones v R [1997] HCA 56; 191 CLR 439
Libke v The Queen [2007] HCA 30; 230 CLR 559
M v R [1994] HCA 63; 181 CLR 487
McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
MFA v R [2002] HCA 53; 213 CLR 606
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
Palmer v The Queen [1998] HCA 2; 193 CLR 1
Picken v R [2007] NSWCCA 319
Proud v R [2016] NSWCCA 41
R v Abusafiah (1991) 24 NSWLR 531
R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979
R v Henning (Court of Criminal Appeal (NSW), Gleeson CJ, Campbell and Mathews JJ, 11 May 1990, unrep)
R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7
R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 329
R v Spicer [2015] NSWSC 519
Robinson v The Queen [1991] HCA 38; 180 CLR 531
RPS v The Queen [2000] HCA 3; 199 CLR 620
SKA v R [2011] HCA 13; 243 CLR 400
Webb v The Queen; Hay v The Queen [1994] HCA 30; 181 CLR 41
Wilde v The Queen (1988) 164 CLR…

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 (No 2)

Details

AGLC: Proud v The Queen (No 2) [2016] NSWCCA 44
Case: [2016] NSWCCA 44
Decision Date: 21 March 2016

CaseChat Overview and Summary

In the case of Proud v The Queen (No 2), the appellant sought to appeal his conviction for murder in the Supreme Court of Victoria. The appeal hinged on the alleged misdirection of the jury regarding the reliability of the appellant’s evidence, as well as the absence of a direction concerning the requisite mental state for participation in a joint criminal enterprise. The Court of Appeal was tasked with determining whether the jury's potential misdirection could have influenced the verdict and whether the trial judge erred in not directing the jury about the mental state required for participation in the joint criminal enterprise.

The court examined whether the jury's potential misdirection in assessing the reliability of the appellant's evidence could have influenced the verdict. The appellant argued that the warning about the potential unreliability of his evidence was erroneous because it was not relied upon by the Crown against his co-accused. The Court of Appeal concluded that the misdirection had the capacity to deflect the jury from its task, and any attempted clarification was ineffective. Additionally, the court considered whether the trial judge should have directed the jury as to the requisite mental state for participation in a joint criminal enterprise. The court held that there was no error in the trial judge's failure to provide such a direction, as the verdict was not unreasonable or unsupported by the evidence. The court also noted that, at the time, it was bound by existing authority and could not reconsider the requisite mental state for extended joint criminal enterprise.

Ultimately, the Court of Appeal quashed the conviction due to the misdirection concerning the reliability of the appellant's evidence. The court rejected the additional ground of appeal concerning the requisite mental state for participation in a joint criminal enterprise, as it was added in anticipation of a possible reconsideration by the High Court of the relevant mental state. The court emphasized that it was presently bound by existing authority on the matter.

Orders