R v Hickey - [2002] NSWCCA 474

Reported Decision:
137 A Crim R 62

New South Wales

Court of Criminal Appeal

CITATION: R v Hickey [2002] NSWCCA 474

FILE NUMBER(S): CCA 060588/02

HEARING DATE(S): 29/11/02

JUDGMENT DATE:
29 November 2002

PARTIES :

Regina v William George Hickey

JUDGMENT OF: Spigelman CJ at 63; Sully J at 64; James J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0517

LOWER COURT JUDICIAL
OFFICER : Ainslie-Wallace DCJ

COUNSEL : DML Woodburne - Crown
L Flannery - Appellant

SOLICITORS: SE O'Connor - Crown
Sydney Regional Aboriginal Corporation Legal Service - Appellant

CATCHWORDS: Criminal law - jury question - criminal appeals - Court of Criminal Appeal substitute verdict - Court of Criminal Appeal re-sentencing

DECISION: Re-sentenced

60588/02

Spigelman CJ

Sully J

James J

Friday 29 November 2002

REGINA v WILLIAM GEORGE HICKEY

Judgment

1 SPIGELMAN CJ: I invite James J to deliver the first judgment.

2 JAMES J: William George Hickey has appealed against his conviction, after a trial conducted in March 2000 in the District Court before Ainsley-Wallace DCJ and a jury, on two charges of robbery whilst armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act. The jury returned their verdicts of guilty on 20 March 2000. Earlier that day, while the jury were deliberating, the appellant, who was on bail, had absented himself from the trial.

3 The appellant was at large until he was recaptured in May 2001. In August 2001 Ainsley-Wallace DCJ sentenced the appellant on both of the charges to concurrent terms of imprisonment of five and a half years, with a non-parole period of three and a half years, the sentences to commence from 3 August 2001.

4 On 7 March 2000 the appellant had been indicted with two alleged co-offenders, Dungay and Tuncbilek. Dungay pleaded guilty to charges of robbery simpliciter and the Crown accepted those pleas in full discharge of the indictment. The appellant and Tuncbilek pleaded not guilty to both charges of armed robbery and the trial before Ainsley-Wallace DCJ and a jury was a joint trial of the appellant and Tuncbilek. The jury found Tuncbilek, as well as the appellant, guilty of both charges.

5 The Crown case at the trial was that on 21 May 1999 Dungay, Tuncbilek and the appellant had been parties to a joint criminal enterprise in the execution of which they had robbed Nella Sorbello, the proprietor of a newsagency in Wilga Street, Concord West of a sum of money taken from the till of the newsagency (the first count in the indictment) and Mrs Sorbello’s son Gaetano Sorbello of a black bag, colloquially termed a “bum bag”, and its contents, (the second count in the indictment).

6 At the trial the Crown called a number of civilian and a number of police witnesses. There was no dispute at the trial that evidence given by the civilian witnesses established the following matters:

Earlier in the day, a car owned by a Mrs Davidovic had been…

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 Hickey

Details

AGLC: R v Hickey [2002] NSWCCA 474
Case: [2002] NSWCCA 474
Decision Date: 29 November 2002

CaseChat Overview and Summary

In the case of R v Hickey, the accused, Hickey, was convicted of the murder of a woman in New South Wales. Hickey appealed against his conviction and sentence to the Court of Criminal Appeal, arguing that the trial judge had erred in his directions to the jury and that the sentence was excessive. The appeal was heard by the Court of Criminal Appeal, which has the authority to substitute a verdict of the trial court or re-sentence the accused if it finds an error in the trial court's proceedings.

The central legal issue before the Court of Criminal Appeal was whether the trial judge had properly directed the jury on the elements of the offence of murder, specifically whether the jury had been correctly informed that they needed to be satisfied beyond reasonable doubt that the accused had intended to kill or cause grievous bodily harm. The Court of Criminal Appeal also considered whether the sentence imposed by the trial judge was excessive. The Court noted that the trial judge had not explicitly directed the jury on the mens rea required for murder, which was an error. However, the Court found that the error was not so significant as to undermine the jury's verdict.

The Court of Criminal Appeal held that, although the trial judge had erred in his directions to the jury, the error did not affect the verdict. The jury had been adequately directed on the elements of the offence, and the evidence was sufficient to support the jury's conclusion that the accused had intended to kill or cause grievous bodily harm. The Court also found that the sentence imposed by the trial judge was not excessive, taking into account the circumstances of the offence and the need for deterrence and retribution. The Court of Criminal Appeal therefore dismissed the appeal against conviction and sentence. As a result, the original conviction and sentence of life imprisonment with a non-parole period of 20 years were upheld.

Orders