R v Forbes

Case [2005] NSWCCA 377


CITATION:

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.

LEGISLATION CITED:

Crimes Act 1900: Pt 11; ss 410, 418, 419, 421
Crimes (Sentencing Procedure) Act 1999: s21A(3)(k)
Criminal Appeal Act 1912: ss 5F, 6
Jury Act 1977: s55B

CASES CITED:

Connelly v DPP [1964] AC 1254
Dietrich v The Queen (1992) 177 CLR 292
Driscoll v The Queen (1977) 137 CLR 517
Doggett v The Queen (2001) 208 CLR 343
Gilbert v The Queen (2000) 201 CLR 414
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
Maric v The Queen (1978) 52 ALJR 631
McAuliffe v The Queen (1995) 183 CLR 108
R v Adomako [1995] 1 AC 171
R v Azar (1991) 56 A Crim R 414
R v Bell (unreported, NSWCCA, 8 October 1998)
R v Blacklidge (unreported, NSWCCA, 12 December 1995)
R v Cardoso (2003) A…

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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.

Orders

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Background

Background to the litigation

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