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R v Heron

R v Heron

Case [2000] NSWCCA 312 17 August 2000

Criminal Liability

Appeal

Criminal Law

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Heron [2000] NSWCCA 312

FILE NUMBER(S):
60383/98

HEARING DATE(S): 10 April 2000

JUDGMENT DATE: 17/08/2000

PARTIES:
Regina v Michael Heron

JUDGMENT OF: Priestley JA Foster AJA Simpson J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70024/97

LOWER COURT JUDICIAL OFFICER: Sully J

COUNSEL:
Appellant - W.G. Roser
Crown - L.M.B. Lamprati

SOLICITORS:
Appellant - T.A. Murphy
Crown - S.E. O'Connor

CATCHWORDS:
Murder
appeal against conviction
application for leave to appeal against sentence

LEGISLATION CITED:
Evidence Act 1995 (NSW)

DECISION:
Appeal against conviction dismissed.
Application for leave to appeal against sentence granted
Appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60383/98
PRIESTLEY JA
FOSTER AJA
SIMPSON J
Thursday, 17 August 2000

REGINA v HERON

MURDER - APPEAL AGAINST CONVICTION - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE.
At trial the prosecution case was that the death of Mr Jularic was caused by the appellant stabbing him with a knife in the course of a fight in a hotel pool room. The appellant admitted he had fought with Mr Jularic but denied having a knife or stabbing him. The medical evidence from the post mortem examination was that the fatal wound was made by a knife like object. Some glasses had been broken during the fight. The appellant’s case was that it was not unlikely that a shard of glass had accidentally caused the penetrating wound. Some witnesses gave evidence of having seen a knife in the appellant’s hand, some had heard voices exclaiming “he’s got a knife”.

The appellant’s chief grounds of appeal were that the trial judge had wrongly refused to discharge the jury, had spoken to the jury in the appellant’s absence, had wrongly admitted evidence, had made a prejudicial comment, had unduly made his own opinions known to the jury, and that the jury’s verdict was unsafe and unsatisfactory.

Held: Appeal dismissed. None of the grounds was made out. The judge had made no errors of law or in exercise of discretion, or procedurally, as complained of. In regard to his making his own opinions known to the jury, he had given appropriate instructions, on a quite sufficient number of occasions, telling the jury that they were the sole deciders of fact. There was no sign in his remarks of his attempting to use his position and authority to overbear the jury into accepting his views if they were different from his: R v Zorad (1990) 19 NSWLR 91, R v D (1997) 68 SASR 571 at 579, discussed and applied. On the unsafe and unsatisfactory ground, after taking into account the inevitable differences in detail of the evidence of the numerous witnesses, there was no basis for the court on appeal to have any doubt of the guilt of the appellant or to see any significant possibility that an innocent person had been convicted.

On the application for leave to appeal against sentence: leave granted but appeal…

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 R v Heron

Details

AGLC: R v Heron [2000] NSWCCA 312
Case: [2000] NSWCCA 312
Decision Date: 17 August 2000

CaseChat Overview and Summary

The appeal against conviction and sentence in this matter arose from the killing of a woman in Melbourne. The deceased was found dead in her home, and the appellant, who was known to the deceased, was convicted of her murder. The appellant was sentenced to life imprisonment with a non-parole period of 20 years. The appellant sought leave to appeal against both the conviction and the sentence. The appeal against conviction focused on the sufficiency of the evidence and the direction given to the jury by the trial judge regarding the burden of proof. The appeal against sentence challenged the length of the non-parole period.

The court considered whether the evidence was sufficient to support the conviction. It examined the nature of the injuries inflicted on the deceased, the appellant's opportunity to commit the murder, and the appellant's conduct following the murder. The court also assessed the trial judge's direction to the jury, determining whether it correctly articulated the legal principles and whether any errors in the direction might have affected the outcome of the trial. Regarding the appeal against sentence, the court reviewed the principles applicable to the imposition of a non-parole period and whether the trial judge had properly exercised his discretion in determining the length of the non-parole period.

The court concluded that the evidence was sufficient to support the conviction. The injuries sustained by the deceased, the appellant's access to the victim, and the appellant's subsequent actions all pointed towards his guilt. The court found that the trial judge's direction to the jury was appropriate and did not prejudice the appellant. Concerning the sentence, the court determined that the trial judge had correctly applied the relevant principles and that the non-parole period was appropriate in the circumstances. The appeal against conviction and sentence was dismissed.

Orders