REGINA v Warren Alan FORBES [2005] NSWCCA 377 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
21 October 2005
JUDGMENT DATE:
4 November 2005
JUDGMENT OF:
Spigelman CJ at 1; McClellan CJ at CL at 149; Hall J at 150
DECISION:
1 Appeal against conviction dismissed; 2 Leave to appeal from each sentence granted; 3 The sentences imposed by his Honour are quashed and the following sentences imposed; 4 In the case of Ross Kimball; (i) Imprisonment for nine years commencing on 29 May 2002 to expire on 28 May 2011; (ii) Non-parole period of six years and nine months commencing on 29 May 2002 to expire on 28 February 2009; 5 In the case of Andrew Hullick; (i) Imprisonment for 12 years commencing on 1 March 2007 to expire on 28 February 2019; (ii) Non-parole period of eight years commencing on 1 March 2007 to expire on 28 February 2015.
CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Juror misconduct - Where juror found in possession of written material possibly related to trial - Whether trial miscarried - Whether directions sufficient to cure irregularity - CRIMINAL LAW - Appeal against conviction - Pre-trial and trial publicity - Whether trial miscarried - Whether directions to jury sufficient to overcome prejudice - CRIMINAL LAW - Appeal against directions - Adequacy of summing up - - Where trial judge did not follow bench book formulation - Whether directions in relation to self-defence correct in law - Whether combination of written and oral directions confusing - CRIMINAL LAW - Appeal against sentence - Manslaughter - Whether trial judge erred in failing to adequately take into account guilty plea and offer to plead guilty - Crimes Act 1900, ss24 - Crimes (Sentencing Procedure) Act 1999, s21A(3)(k) - CRIMINAL LAW - Appeal against sentence - Manslaughter - Joint criminal enterprise - Sentence of 12 years imprisonment - Whether manifestly excessive - Crimes Act 1900, s24 - CRIMINAL LAW - Appeal against sentence - Manslaughter - Excessive self-defence - Sentence of 12 years imprisonment - Whether manifestly excessive - Crimes Act 1900, s24, 410, 418, 419, 421.
[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
R v Forbes [2005] NSWCCA 377
Case
[2005] NSWCCA 377
Decision Date
CaseChat Overview and Summary
The appellant, Forbes, appealed against his conviction and sentence for manslaughter. The trial judge found Forbes guilty of manslaughter following a joint criminal enterprise where he and his co-accused had attempted to rob the victim. The appeal was heard by the Court of Criminal Appeal. The court had to consider whether the trial was unfair due to juror misconduct, whether the trial judge's directions to the jury were sufficient, and whether the sentence imposed was manifestly excessive.
The court found that the discovery of a juror in possession of written material possibly related to the trial did not necessarily lead to a miscarriage of justice. The court noted that the directions given to the jury were sufficient to address any potential prejudice arising from the misconduct and from pre-trial publicity. The court also found that the trial judge's summing up was not in error and was not confusing. The court rejected the appellant's argument that the sentence was manifestly excessive, finding that the trial judge had adequately taken into account the guilty plea and the offer to plead guilty. The court also found that the sentence was not excessive in light of the seriousness of the crime and the appellant's role in it.
The appeal against conviction and sentence was dismissed. The court found that the trial was fair and that the sentence was appropriate. The appellant's conviction and sentence were upheld.