1. The appeal against conviction is dismissed; 2. Leave to appeal against sentence; 3. The sentence appeal is upheld; 4. The sentence of imprisonment for nine years is quashed and a new head sentence of imprisonment for six years commencing on 28 October 2003 is imposed with a non-parole period of four years and six month.. The earliest day on which it appears that the appellant will become eligible for release on parole is 28 April 2008.
CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - Appeal against conviction - Directions as to the absence of any evidence from the accused - Whether "desirable" in this case for full "Azzopardi" direction to be given - No reference in direction given to some evidence not available to fill in gaps in Crown case or as make-weight in assessing whether Crown has proved its case beyond reasonable doubt - No complaint at trial as to adequacy of summing-up - Rule 4 - Need to show that error led to miscarriage of justice for leave to rely on error. - Whether missing ingredients of "Azzopardi" direction "desirable" in this case - Whether those ingredients directed to weight to be given to hearsay evidence of exculpatory statements by accused to police or to preventing jury from reasoning that, if the accused had any answer to the Crown case or to a particular part of the Crown case he or she would have given evidence of that, and that he did not give evidence because his or her evidence would have filled in those gaps or added to the weight of the Crown case. - Reliance by appellant in Regina v Macris [2004] NSWCCA 261 - whether ruling that nothing in the facts of that case would have made a full "Azzopardi" direction "inappropriate" demonstrated that it was "desirable" for such a direction to be given - whether correctly decided. - Appeal against sentence - misdirection as to existence of recognised range of sentences for manslaughter of young child - matters of aggravation referred to without indicating whether accepted or rejected - reduced sentence.
[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.
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Details
AGLC
R v Wilson [2005] NSWCCA 20
Case
[2005] NSWCCA 20
Decision Date
CaseChat Overview and Summary
The case of R v Wilson was an appeal against conviction and sentence. The appellant was convicted of the manslaughter of his infant daughter. The appeal was against the conviction and the sentence imposed by the trial judge. The legal issues centred on the adequacy of the directions given to the jury regarding the appellant's failure to give evidence, and whether the trial judge erred in the sentencing process by not properly applying the recognised range of sentences for manslaughter of a young child.
The Court of Appeal considered whether the trial judge's direction to the jury on the appellant's silence was deficient because it did not include certain elements of the "Azzopardi" direction. The appellant argued that the omission of these elements constituted a significant error. The Court noted that the appellant had not raised any objection to the adequacy of the summing-up at trial. The Court held that for an error to warrant appeal under Rule 4, it must have led to a miscarriage of justice. The Court found that the omission of certain elements of the "Azzopardi" direction was not desirable in this case as it did not prejudice the appellant's case. The Court also considered whether the trial judge had erred in the sentencing process by not properly applying the recognised range of sentences for manslaughter of a young child. The Court found that the trial judge had erred in not indicating whether certain matters of aggravation were accepted or rejected, and this had led to an unjustifiable disparity in sentencing.
The Court of Appeal allowed the appeal against sentence but not against conviction. The sentence was reduced in light of the errors identified in the sentencing process. The conviction was upheld as the Court found that the errors in the trial did not lead to a miscarriage of justice.