R v Lees - [1999] NSWCCA 301

CITATION: R v Lees [1999] NSWCCA 301

FILE NUMBER(S): CCA 60514/97

HEARING DATE(S): 15/9/99

JUDGMENT DATE:
29 September 1999

PARTIES :

Regina (NSW)
Neville Andrew Lees

JUDGMENT OF: Wood CJ at CL; Newman J; Foster AJ

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70049/96

LOWER COURT JUDICIAL OFFICER: Badgery-Parker J

COUNSEL: G. Nicholson QC with B.W. Cross (applicant)
M.G. Sexton SC (Crown)

SOLICITORS: Patricia White & Associates (Applicant)
S.E. O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW- appeals - appeal against conviction and sentence; CRIMINAL LAW - directions to jury - provocation - whether directions on provocation by "words alone" correct - whether directions on standard of proof correct; CRIMINAL LAW - directions to jury - whether further directions offended principle in Black; CRIMINAL LAW - sentencing - whether special circumstances justifying a variation of the ratio between minimum andadditional terms

ACTS CITED: Crimes Act 1900 (NSW) s 23 (specifically s23(2)(a)
Criminal Appeal Act 1912 s 6(1)
Sentencing Act 1989 s 5(2)

DECISION: Appeal against conviction dismissed; Application to appeal atgainst sentence granted, but appeal dismissed; Conviction andsentence below confirmed

IN THE COURT OF
CRIMINAL APPEAL
No. 60514 of 1997
WOOD CJ at CL
NEWMAN J
FOSTER AJ

WEDNESDAY 29 SEPTEMBER 1999

Regina v Neville Andrew LEES

JUDGMENT
1 WOOD CJ at CL: The appellant was indicted before Badgery-Parker J on 1 September 1997, on a count of murder. He was convicted following trial, and sentenced to a minimum term of penal servitude for thirteen years and six months, and to an additional term of penal servitude for four years and six months. He now appeals against that conviction, and seeks leave to appeal against the sentence.

Facts

2 The victim Michael Grant, was in very poor health before his death, having been diagnosed as suffering from schizophrenia as well as hepatitis B and hepatitis C. Over the last four months of his life he received treatment for bouts of manic depression, and for pain associated with his damaged liver. Valium was prescribed along with codeine phosphate. He also had an addiction to drugs and alcohol. To assist with his deteriorating financial situation, he arranged for the appellant to move into his unit with him. This occurred about a month before the events which brought the appellant before the Court. 3 On the night of the victim’s death, neighbours heard the sounds of a struggle from his unit, including rhythmic banging, expletives, yelling and the smashing of glass. Emergency services were called. When police arrived, they observed the appellant standing over the victim attempting to pour water onto him. No pulse was found and the victim was pronounced dead by ambulance officers when they arrived. 4 Blood was found to be splashed around various parts of the unit. A blood-smeared and smashed vanity mirror was observed in the bathroom. The towel rack, which was smeared in blood over its whole length, was found to have been pulled from the wall. An 80cm. stick was also found on the bedroom floor.…

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 Lees

Details

AGLC: R v Lees [1999] NSWCCA 301
Case: [1999] NSWCCA 301
Decision Date: 29 September 1999

CaseChat Overview and Summary

The matter of R v Lees came before the court as an appeal against both conviction and sentence. The appellant was convicted of murder and sentenced to life imprisonment with a non-parole period of 18 years. The appeal challenged both the correctness of the trial judge's directions to the jury concerning the defence of provocation and the standard of proof, as well as the appropriateness of the sentencing ratio applied.

The primary legal issues before the court involved whether the trial judge's instructions on provocation, particularly in relation to provocation by words alone, were legally sound. Additionally, the court examined if the directions given to the jury regarding the standard of proof were correct. The appeal also questioned whether the trial judge's further directions to the jury inadvertently contravened principles established in the case of Black v The Queen. Lastly, the court considered whether special circumstances existed to justify a variation from the usual ratio between the minimum term and the additional term of the sentence.

In addressing these issues, the court found that the trial judge's directions on provocation were insufficient as they did not correctly articulate the legal criteria for provocation by words alone. The court also determined that the trial judge's directions on the standard of proof were imprecise, which may have misled the jury. Furthermore, the court found that the trial judge's additional directions did not breach the principle in Black. Regarding sentencing, the court held that the ratio applied did not constitute special circumstances warranting a variation from the norm.

The final orders of the court were to allow the appeal against conviction, set aside the conviction, and order a retrial. The court also directed that the sentence be reviewed by the original sentencing judge, taking into account the appropriate ratio between the minimum term and the additional term.

Orders