R v Short

Case [2000] NSWCCA 462

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:         R v Short [2000]  NSWCCA 462 revised - 7/11/2000

FILE NUMBER(S):
60260/99
60272/99

HEARING DATE(S):          4 August 2000

JUDGMENT DATE:           03/11/2000

PARTIES:
Regina
Jay William SHORT

JUDGMENT OF: Beazley JA Grove J Kirby J   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):               70077/97

LOWER COURT JUDICIAL OFFICER:          Sully J

COUNSEL:
Crown:  L M B Lamprati / S Piedade
Short:    J S Stratton / D Yehia

SOLICITORS:
Crown:  S E O’Connor
Short:    D J Humphreys

CATCHWORDS:
Murder
Robbery with corporal violence
Assault occasioning actual bodily harm
Direction to jury
Unsafe and unsatisfactory verdicts
Manifestly inadequate sentence

LEGISLATION CITED:
s 19A, s 95, s 59 Crimes Act 1900 (NSW)
s 4 Criminal Procedure Act 1986 (NSW)
s 48(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:
Appeal against conviction dismissed
Appeal against sentence allowed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA   60260/99; 60272/99

BEAZLEY JA
  GROVE J
  KIRBY J

Friday, 3 November 2000

REGINA v Jay William SHORT

FACTS

The appellant was convicted on one count of murder, one count of robbery with corporal violence and one count of assault occasioning actual bodily harm.

He was sentenced to a term of 20 years imprisonment for the offence of murder, consisting of a minimum term of 16 years with an additional term of 4 years.  For the offence of robbery he was sentenced to 5 years and for the offence of assault 2 years, with the sentences on the three counts being served concurrently.  The Crown appealed against the sentences imposed for the three counts.

The three offences arose out of a series of events occurring within a short interval of time.  There wee no witnesses to any of the offences.  However, the appellant, who was arrested the day after the murder, confessed to the murder but retracted his confession one year later, claiming that he had been present when two friends abducted the dead victim but not when she was killed.  He claimed only to have buried her body after finding her dead.  He denied any involvement in the other two offences.

The appellant raised two grounds of appeal in relation to the murder conviction.  First, that the trial judge’s direction to the jury that the “basic question” or “cardinal question” for them was whether they believed Short was tantamount to giving a direction that their task was to choose between the Crown evidence and the evidence of the accused contrary to the principles stated in R v E (1995) 89 A Crim R 325 and R v Towner (1991) 56 A Crim R.  The second ground was that the trial judge erred in preventing counsel from addressing the jury about the possibility that exhibits had been contaminated.  Short also appealed against his convictions on the counts of robbery and assault on the ground that the verdicts were unreasonable and not supportable having regard to the evidence.

The Crown also appealed against sentence, contending firstly, that the trial judge failed to give sufficient…

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AGLC
R v Short [2000] NSWCCA 462
Case
[2000] NSWCCA 462
Decision Date

CaseChat Overview and Summary

The case of R v Short involved the appellant standing trial in the Supreme Court of New South Wales on charges of murder, robbery with corporal violence, and assault occasioning actual bodily harm. The appellant contested the charges, leading to a trial before Sully J and a jury from 23 November to 14 December 1998. The court needed to determine whether the appellant was guilty of the crimes as alleged by the Crown, based on a range of evidence including confessional statements, forensic evidence, and other circumstantial evidence.

The central legal issue before the court was the admissibility and reliability of the confessional material provided by the appellant. The Crown relied heavily on statements made by the appellant to police and other witnesses that incriminated him in the crimes. The court had to decide whether these statements were reliable enough to be acted upon by the jury. This involved assessing the credibility of the appellant's explanations for making the statements, such as his claim that he was under pressure from others, and the overall reliability of the evidence presented. The court also had to consider whether the jury's verdict, if found to be unsafe and unsatisfactory, could be set aside and whether the sentence, if deemed manifestly inadequate, could be reviewed.

The court meticulously reviewed the evidence and the arguments presented by both parties, focusing on the reliability of the confessional statements and the credibility of the appellant's defence. The trial judge directed the jury to carefully consider the burden of proof and to assess the reliability of the evidence, particularly the confessional material. The judge emphasised that the Crown had to affirmatively establish the reliability of the confessional material. The jury was instructed that if there was a reasonable possibility that the confessional material was not reliable, it should not be acted upon. The court also stressed the importance of evaluating the reliability of evidence from other witnesses who testified about the appellant's admissions.

The outcome of the trial hinged on the jury's assessment of the reliability of the evidence and the credibility of the appellant's defence. The court's reasoning was grounded in ensuring that any verdict reached by the jury was based on reliable and credible evidence. The final orders of the court would depend on the jury's verdict and the court's subsequent review of the evidence and the sentence, if the appellant was found guilty.

Orders

Orders of the court

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Background

Background to the litigation

His Honour dealt briefly with question 4 before dealing with question 3, directing the jury that: :“…it is important for you to address [the facts] in terms of the questions, bearing in mind it is the burden of the Crown to prove the facts beyond reasonable doubt.” (emphasis added) His Honour then returned to question 3. He summarised both the Crown case and the case for the appellant in considerable detail. He discussed the first record of interview, the admissions made by the appellant in it and the very significant attack made upon its reliability by the appellant, including reference to the appellant’s explanation as to why he had made the apparently damning admissions. His Honour directed the jury that it was a matter for them as to “where you think the truth lies … but remember, it is for the Crown affirmatively to establish the reliability of the confessional material upon which it relies” (emphasis added). Having further discussed the conflicting positions of the Crown and the appellant in relation to the confessional material he concluded:“If, at the end of your consideration of all this material represented by things said by the accused to the police, you think that there remains a reasonable possibility that those damaging things upon which the Crown relies are in truth not safe to act upon, then you will not act upon them and you will set aside this part of the Crown case.” (emphasis added) His Honour dealt with the other alleged confessional material made to non police witnesses, again reminding the jury that they had to assess whether there was a “reasonable possibility” that the persons giving evidence of those admissions had not accurately recalled what was said to them. He likewise gave a warning about Aaron Martin’s evidence and that if they had “real doubts about the reliability of Aaron Martin’s evidence, then so much of the Crown case as relies upon that evidence becomes … cancelled out”. His Honour moved to the case for the appellant. He described what he termed “the essence of the [appellant’s] case” and outlined what the appellant had said in his sworn evidence before the jury, including his evidence of his connection with the attack on Ms Lewis that night; his evidence as to why he had buried the body; his explanation as to why he had made the incriminating statements to the police; and his denial of having made the incriminating statements to the other Crown witnesses. His Honour summed up the essence of the appellant’s case in these terms:“He says, if one can bring the other elements in his case together, that there is indeed a sense in which he was the wrong person, in the wrong place, at the wrong time; but it is not a sense inculpatory of him; that it was in fact, his misfortune, and coincidental misfortune, that he found himself confronted with events that he describes in such length and in such detail in his evidence.”His Honour then gave this direction:“Once again the cardinal question for you is, do you believe him? Do you think that the substance of that version of events, as he has given it to you, is reliable and safe to act upon?” (emphasis added)

Evidence

Evidence Before The Court

The appellant agreed with the interviewing police officers that the first record of interview and his initial statement to police, in which he had admitted that he killed Ms Lewis, were given of his own free will. When questioned about his reason for initially admitting responsibility for the murder, he said:“A Well, you said from the start that I had to think about myself, I was the only once (sic) that could help meself.Q 287 In relation to what?A To this.…Q 311 Are you able to tell me why on the night of your arrest you stated that you were the person responsible for her murder?A Youse told me I had to, that I was the only one that could help meself, and that’s what I did. I’ve told the truth on many occasions when Mr Carter’s picked me up before and never believed me, so ---…Q314 So why would you lie if you were trying to help yourself?A I was still with these people, so I wanted a story to tell ‘em.Q315 Right. Were you under any threat to make that interview?A Nuh.”Evidence At Trial The trial on all three counts proceeded in the Supreme Court of New South Wales at Sydney before Sully J and a jury of 12 between 23 November 1998 and 14 December 1998. The appellant pleaded not guilty on each count. In addition to the confessional statements made to the police, the Crown relied upon forensic evidence, statements to other witnesses which contained confessional material and other circumstantial evidence. The forensic evidence was extensive. Dr Lawrence, forensic pathologist, performed the autopsy on Ms Lewis’ body. He concluded that her death was due to ligature strangulation. This was not subject to challenge. Dr Lawrence also gave detailed evidence as to the injuries to Ms Lewis’ body, how they were caused, and whether they were caused before or after death. He described the abrasion across the right ear and upper right neck and said that could have been caused by the broken end of the stake which had been found on the railway line. He described three incision wounds on the neck, the incision wounds on each wrist and an incision wound on the right thigh. He was shown the piece of glass which the appellant had identified in his video walk around as being the implement he had used to cut Ms Lewis’ wrists and asked “could any of the angles of that piece of glass cause any of the incised wounds which you saw?”. He answered:“I don’t think so. The wounds that I saw are extremely sharp edged with no abrasion whatsoever and no curvature in the actual cutting. They ran straight across. The injuries I had seen inflicted previously by glass had tended to be curved and they tended to have blade edges, because it is not a sharp blade. The profile of the injuries that I have seen were of a very sharp object, in other words something like a knife, I assume.”This evidence was not challenged. Dr Lawrence also said the incisions could have been caused by any knife, including the swiss army knife seized from the appellant’s home on 3 March. He agreed, however, in cross-examination that there was “nothing in the nature of the wounds … that might indicate the nature of the blade or the size of the implement used”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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