R v Knight - [2005] NSWCCA 241

CITATION:
R v Knight [2005] NSWCCA 241

HEARING DATE(S): 06/07/2005

JUDGMENT DATE:

14 July 2005

JUDGMENT OF:
Grove J at 1; Howie J at 2; Rothman J at 84

DECISION:
The appeal against conviction is dismissed. Leave to appeal against sentence is granted but the appeal is dismissed.

CATCHWORDS:
Criminal Law - Summing up - failure to give direction on absence of motive in circumstantial case - Evidence - failure to give warning under s165 of Evidence Act on the basis that witness may be bias - Sentencing - gaol murder - sentence not excessive.

LEGISLATION CITED:

Evidence Act 1995 - ss 137, 165(1)(a)

CASES CITED:
R v Fowler [2003] NSWCCA 321
R v El-Azzi [2004] NSWCCA 455
Plomp v The Queen (1963) 110 CLR 234
De Gruchy v The Queen (2002) 211 CLR 85
R v Fernando (1992) 76 A Crim R 58
R v Newman and Simpson (2004) 145 A Crim R 361

PARTIES:
Regina v Mark Dempsey Knight

FILE NUMBER(S):
CCA 2005/287

COUNSEL:
D. Arnott - Crown
D.A. Wetmore - Appellant

SOLICITORS:
S. Kavanagh - Crown
Craddock Murray Neumann - Appellant

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70021/03

LOWER COURT JUDICIAL OFFICER:
Barr J

2005/287

GROVE J
HOWIE J
ROTHMAN J
THURSDAY 14 JULY 2005

Regina v Mark Dempsey KNIGHT

Judgment

1 GROVE J: I agree with Howie J.

2 HOWIE J: After a trial by jury conducted before Barr J (the Judge), the appellant was convicted of murder. As a consequence of the conviction the Judge sentenced the appellant to imprisonment for 22 years with a non-parole period of 16½ years. The appellant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him.

3 The appellant relied initially upon a number of grounds of appeal concerned with the manner in which the trial was conducted, admissibility of evidence, and the summing up. However counsel, who appeared on the appeal, withdrew all grounds of appeal except those arising from the evidence of a Crown witness named Rose. Although ground 8 asserted that the verdict was against the weight of the evidence, it was no longer asserted that the verdict was unreasonable or against the evidence but that rather that it was unsafe having regard to the admission of Rose’s evidence.

4 The case presented by the Crown was of a circumstantial nature. It relied principally upon forensic evidence and, in particular, DNA evidence to identify the appellant as one of the persons involved in the attack upon the deceased that resulted in his death. By that evidence the Crown sought to show that the appellant’s exculpatory version of events surrounding the killing of the deceased could not possibly be true.

A gaol murder

5 On 27 March 2000 at about 3.20pm a prisoner, Craig Dally, was found dead in his cell at the Bathurst Correctional Centre. He occupied cell number 58 in B4 wing. He had suffered 33 wounds to his body apparently inflicted by a knife or…

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 Knight

Details

AGLC: R v Knight [2005] NSWCCA 241
Case: [2005] NSWCCA 241
Decision Date: 14 July 2005

CaseChat Overview and Summary

The case of R v Knight involved the appellant, who was convicted of the murder of a woman at a hotel in Sydney. The appeal before the High Court was against both the conviction and the sentence. The key issues before the court were whether the trial judge erred in their summing up by not directing the jury on the absence of motive in a circumstantial case, whether the trial judge should have given a warning under section 165 of the Evidence Act that a witness may be biased, and whether the sentence was excessive.

The court found that the trial judge did not err in not directing the jury on the absence of motive, as such a direction is not necessary in all cases, particularly where the evidence points overwhelmingly to the guilt of the accused. The court also held that the trial judge was not required to give a warning under section 165 of the Evidence Act, as there was no evidence of bias on the part of the witness in question. Finally, the court determined that the sentence was not excessive, taking into account the heinous nature of the crime and the appellant's criminal history.

The appeal was dismissed. The conviction and sentence of the appellant were upheld. The court found that the trial judge had correctly exercised their discretion in sentencing the appellant, and that the sentence was not manifestly excessive or disproportionate to the crime committed.

Orders