Legal Research
Cases
R v Withers

R v Withers

Case [2009] VSCA 306 18 December 2009

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 857 of 2007

THE QUEEN
	v
SHIRLEY WITHERS

---

JUDGES:	BUCHANAN, ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2009
DATE OF JUDGMENT:	18 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 306
JUDGMENT APPEALED FROM:	R v Withers [2007] VSC 411 (Harper J)

---

CRIMINAL LAW – Murder – Verdict unreasonable and unable to be supported by the evidence – Whether applicant injected deceased with heroin – Whether injection of heroin was a substantial and operative cause of death – Whether applicant had an intent to kill –Intent to kill dependant upon proof of motive – Evidence considered as a whole did not establish intent beyond reasonable doubt – Lie told by accused capable of displaying consciousness of guilt – Conviction for murder set aside – Conviction for manslaughter substituted.

CRIMINAL LAW – Sentence – Incitement to murder – Impaired mental functioning of applicant did not reduce moral culpability – Pleas of guilty – No defence – No remorse.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C Silbert SC	Mr C. Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter	Lethbridges

BUCHANAN JA
ASHLEY JA
WEINBERG JA:

On 30 March 2006, the applicant, Shirley Withers, pleaded not guilty, in the Supreme Court at Melbourne, to one count of murder (count 1), but reserved her plea to two counts of incitement to murder (counts 2 and 3). Her trial commenced on 26 April 2007. On 3 May 2007, in the absence of the jury, she pleaded guilty to counts 2 and 3. On 5 June 2007, after a trial lasting some six weeks, she was convicted on the count of murder.

On 19 October 2007, the applicant was sentenced to a term of 20 years’ imprisonment on count 1, and terms of seven years’ imprisonment on each of counts 2 and 3. The sentences for counts 2 and 3 were ordered to be served concurrently with each other. Six years of the sentence on count 2 was ordered to be served cumulatively upon the sentence imposed on count 1. That made a total effective sentence of 26 years’ imprisonment. A non-parole period of 18 years was fixed.

The applicant now seeks leave to appeal against both conviction and sentence.

The circumstances of the offending

The applicant had for some years been in a de facto relationship with the deceased, Peter Shellard. She had also been the book-keeper for his car business, Kellow-Falkiner Motors Pty Ltd. However, there had been a falling out between them and, in around April 2005, he had removed her as a signatory to his business accounts.

The applicant owned and operated a retail business, Suzette Boutique, in Brighton. The deceased had contributed funds to that business but had ceased doing so at about the same time that he caused the applicant to be removed as a signatory to the Kellow-Falkiner accounts.

On the evening of 6 May 2005, a Friday, the applicant…

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 Withers

Details

AGLC: R v Withers [2009] VSCA 306
Case: [2009] VSCA 306
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the case of R v Withers, the appellant was convicted of the murder of the deceased, a 20-year-old woman. The appellant appealed against his conviction and sentence, arguing that the verdict was unreasonable and unable to be supported by the evidence. The court was required to consider whether the appellant injected the deceased with heroin, whether the injection was a substantial and operative cause of death, and whether the appellant had the intent to kill the deceased. The court also had to consider the appropriate sentence for the crime of incitement to murder, taking into account the appellant's impaired mental functioning, pleas of guilty, and lack of remorse.

The court found that the evidence did not establish beyond reasonable doubt that the appellant injected the deceased with heroin, nor that the injection was a substantial and operative cause of death. The court also found that the evidence did not establish that the appellant had the intent to kill the deceased, as the intent to kill was dependant upon proof of motive, which was not established. The court considered the lie told by the appellant as capable of displaying consciousness of guilt, but this alone was not enough to establish intent to kill. The court found the conviction for murder to be unreasonable and unable to be supported by the evidence and set it aside, substituting a conviction for manslaughter.

The court considered the appropriate sentence for incitement to murder, taking into account the appellant's impaired mental functioning, pleas of guilty, and lack of remorse. The court found that the appellant's impaired mental functioning did not reduce his moral culpability, and that his pleas of guilty and lack of remorse were not mitigating factors. The court imposed a sentence of imprisonment, with a non-parole period of 12 years.

The court set aside the conviction for murder and substituted a conviction for manslaughter, with a sentence of imprisonment for a term of 15 years, with a non-parole period of 12 years.

Orders