CATCHWORDS: CRIMINAL LAW - Accused convicted of murder - Appeal against conviction - Whether trial Judge erred in her directions to the jury on: lies as evidence of consciousness of guilt; circumstantial evidence; motive; accessorial liability - Whether trial Judge should have warned the jury with respect to particular evidence - Whether trial judge erred in permitting cross-examination of particular witness - Whether trial Judge erred in admitting particular evidence - Whether trial Judge erred in her directions to the jruy on the meaning of an unsworn statement - Appeal agaisnt sentencing - Whether trial judge should have imposed a lesser sentence on the basis that the accused's liberty had been affected over a length of time due to the circumstances of the case. D
DECISION: a) Appeal against conviction is dismissed b) Leave to appeal against sentence is granted but the appeal is dismissed
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
CCA 60129/03 SC 70137/91
TOBIAS JA JAMES J HOWIE J
Tuesday 11 November 2003
R v WARWICK FOWLER
Judgment
The Court: On 21 February 2001, the appellant was convicted by a jury of the charge of murdering Trevor Climpson (the deceased) on 8 January 1988. This was his third conviction for that offence, the two previous convictions having been set aside after successful appeals to this Court. Simpson J sentenced the appellant to 10 years and 10 months imprisonment, commencing on 20 February 2001, with a non-parole period of 6 years and 10 months to expire on 19 December 2007. The appellant appeals against both the conviction and sentence.
Thirteen grounds of appeal are relied upon by the appellant in respect of his conviction for murder. These relate to the admissibility of evidence and the contents of the summing up. There is no ground of appeal asserting that the conviction was unreasonable or cannot be supported having regard to the evidence.
THE CROWN CASE
The Crown case was that the appellant was either the person who inflicted one or more of the bullet wounds to the deceased or, alternatively, was present at the time of the shooting, aiding or encouraging the person responsible for inflicting the wounds. It was a circumstantial case based upon the following categories of evidence: the opportunity of the appellant to be present at the time of the killing; motive; inclination; evidence linking the appellant to weapons associated with the killing; and behaviour evidencing a consciousness of guilt. In the last category…
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.
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AGLC
R v Fowler [2003] NSWCCA 321
Case
[2003] NSWCCA 321
Decision Date
CaseChat Overview and Summary
In the case of R v Fowler, the appellant, Fowler, was convicted of murder and appealed against both his conviction and his sentence. The primary legal issues were whether the trial judge erred in her directions to the jury concerning various aspects of the evidence, including the use of lies as evidence of consciousness of guilt, the nature of circumstantial evidence, motive, and accessorial liability. Additionally, the appeal addressed whether the trial judge should have issued a specific warning about particular evidence and whether she erred in permitting certain cross-examinations and the admission of specific evidence. Furthermore, the appeal questioned the trial judge's directions on the meaning of an unsworn statement and whether the trial judge should have imposed a lesser sentence due to the appellant's prolonged liberty being affected by the circumstances of the case.
The court examined the trial judge's instructions to the jury regarding circumstantial evidence and motive. It was argued that the trial judge should have directed the jury to consider certain facts as indispensable links in the chain of reasoning towards an inference of guilt, requiring them to be satisfied beyond reasonable doubt. The trial judge had provided written directions stating that while individual facts in a circumstantial case need not be established beyond reasonable doubt, the overall guilt of the accused must be proven beyond reasonable doubt. Additionally, the court reviewed the trial judge's directions on motive, which the appellant argued should have required the jury to be satisfied of the motive beyond reasonable doubt. The court found that the trial judge's directions were adequate and did not err in their approach to circumstantial evidence and motive.
The appeal against conviction was dismissed as the court found no merit in the grounds of appeal concerning the trial judge's directions to the jury. The appeal against the sentence was also dismissed, as the court determined that there were no special circumstances justifying a reduction in the non-parole period. Consequently, the orders of the court were to dismiss the appeal against conviction and to grant leave to appeal against the sentence but dismiss the appeal, maintaining the original sentence imposed by the trial judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
We would therefore reject this ground of appeal.Ground 2: The trial judge erred in her directions to the jury on circumstantial evidence; ANDGround 5: The trial judge erred in her directions to the jury on motive It is convenient to deal with these grounds together. With respect to Ground 2, it was submitted by the appellant that as the Crown case involved proof that the accused was present at the time of the murder and that the pistol and rifle used in the killing belonged to him, in order for the Crown to establish these facts it was also necessary for the Crown to establish the following: that the appellant was not at his mother’s home at the time of the murder; that he owned or had in his possession the weapons that were used in the murder; and that the projectiles which caused the death of the deceased were fired from those weapons at the time. Accordingly, it was open to the jury to regard these matters as intermediate facts constituting indispensable links in a chain of reasoning towards an inference of guilt. This being so, her Honour should have directed the jury that, if they considered that such facts were indispensable links in their chain of reasoning, they would need to be satisfied of them beyond reasonable doubt before they could convict the appellant. In her final written directions to the jury, her Honour stated the following [415]:“1.A circumstantial case depends upon inferences to be drawn from a collection of facts, events and circumstances. 2.No individual fact or circumstance needs to be established beyond reasonable doubt.3.Individual facts and circumstances on which the Crown relies may draw strength from one another. Even weak strands may be strengthened by being put together with other evidence.”These written directions also included a direction that, before the jury could convict on the basis of circumstantial evidence, they must be satisfied that the guilt of the appellant had been proved beyond reasonable doubt. These written directions were “settled” with the approval of the appellant’s trial counsel. Motive was the second of the five different categories of evidence on which the Crown relied as part of its circumstantial case. Her Honour directed the jury with respect to motive in [180]-[202] of the summing up. In the first of those paragraphs she directed the jury that where, as in the present case, the Crown sets out to prove that the accused had a motive, that was one piece of evidence or one circumstance on which they could rely. The appellant submitted that, because the Crown had opened motive to the jury and had relied upon it “as an essential part of its case” in respect of which her Honour had given extensive directions, the jury should have been directed that they could not use motive unless they were satisfied that it had been proved beyond reasonable doubt. We have already referred in [53] to the decision of the High Court of Australia in Shepherd. The appellant sought to call in aid that decision, in particular the statement of Dawson J (at 579) that:“If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn.”His Honour then made it clear that, where the evidence consists of strands in a cable rather than links in a chain, it is not appropriate to give such a warning, and that in any event it should not be given where it would be unnecessary or confusing to do so. He continued:“It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt when the other inference consistent with innocence is reasonably open on the evidence.”
Decision
Reasons for decision
Nor is there any merit in the submission that these same considerations should have given rise to a finding of special circumstances. They are not the type of matters that would justify a reduction in the non-parole period from that which would automatically flow from the operation of s 44 of the Crimes (Sentencing Procedure) Act. There is nothing to indicate that a longer period of supervision on parole is warranted and no other reason why the otherwise appropriate non-parole period should be reduced.Conclusion It follows from the foregoing that the orders of the Court are as follows:a)Appeal against conviction is dismissed;b)Leave to appeal against sentence is granted but the appeal is dismissed.