REGINA v Robert Darren McLeod - [2002] NSWCA 420

CITATION: REGINA v Robert Darren McLEOD [2002] NSWCA 420

FILE NUMBER(S): CA 41107/02

HEARING DATE(S): 3 December 2002

JUDGMENT DATE:
3 December 2002

PARTIES :

REGINA v Robert Darren McLEOD

JUDGMENT OF: Mason P at 1; Meagher JA at 14; Heydon JA at 17

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL: Applicant: M Pickin
Crown: T Bailey

SOLICITORS: Applicant:
Crown: S E O'Connor, Public Prosecutions

DECISION: Application refused.

CA 41107/02

MASON P
MEAGHER JA
HEYDON JA

Tuesday 3 December 2002

REGINA v Robert Darren McLEOD

JUDGMENT

1 MASON P: This is an application for bail made pursuant to s 28 of the Bail Act. It was referred to this Court in accordance with the practice stated in The Queen v Masters (1992) 26 NSWLR 450.

2 The applicant is charged with an offence of aggravated robbery that occurred on 30 November 1999. It involved the taking with force of a bottle of bourbon from a liquor store, the force involved the assaulting of the man in charge of the shop. It apparently was only on 4 December 2001, when the applicant was arraigned in the District Court at Nowra, that he proffered a plea of guilty. There will still of course be a utilitarian discount but the prospects of any discount being based upon contrition or the early proffering of a plea seem to be very, very small.

3 The applicant is a man aged twenty four. He has, we are informed, spent his life residing in the Wollongong area. He has family and community ties in that area. He has a lengthy criminal record involving numerous offences involving theft, malicious damage, robbery and other offences involving violence. One of the offences involves a charge of escape. The offence in question to which he has now pleaded guilty occurred when he was on parole.

4 The matter seemed to have proceeded at a very desultory pace in the District Court. It first came before Norrish DCJ for sentencing on 15 February 2002. The sentencing proceedings were then stood over in order that the court could have the benefit of a pre-sentence report from the Probation and Parole Service. There were further adjournments. These were caused by the applicant’s failure to cooperate with the Probation and Parole Service.

5 On the last day that the matter came before Norrish DCJ, being 1 November 2002, the applicant did not appear when his name was called. A bench warrant issued for his arrest. Eventually he appeared at court. The earlier order for bench warrant was revoked. His Honour received a report from the Probation and Parole officer dated 30 October 2002. The officer spoke about her inability to obtain the applicant’s cooperation or attendance. There had been more than one occasion when this did not occur. The report concluded:

Consequently, the Service has again been unable to complete the requested pre-sentence report. Mr McLeod’s non-attendance at…

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.

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Details

Case: [2002] NSWCA 420
Decision Date: 3 December 2002

CaseChat Overview and Summary

The applicant, Robert Darren McLeod, sought leave to appeal against his conviction for the offence of assault occasioning actual bodily harm. The appeal was heard by Mason P, Meagher and Heydon JJA of the Court of Criminal Appeal of New South Wales.

The central legal issue before the Court was whether the trial judge had erred in law by failing to adequately direct the jury on the issue of self-defence, specifically in relation to the applicant's subjective belief that he was acting in self-defence and the objective reasonableness of that belief. The applicant contended that the jury's verdict was unsafe and unsatisfactory due to this alleged misdirection.

The Court considered the principles governing directions on self-defence, noting that a jury must be satisfied beyond reasonable doubt that the accused did not act in self-defence. This requires the jury to consider both the subjective belief of the accused and the objective reasonableness of that belief in the circumstances as the accused perceived them. The Court found that the trial judge's directions, when read as a whole, adequately conveyed these principles to the jury, and that there was no material error in the summing up that would render the verdict unsafe or unsatisfactory.

Accordingly, the application for leave to appeal was refused.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	REGINA v Robert Darren McLEOD [2002] NSWCA 420
FILE NUMBER(S):	CA 41107/02
HEARING DATE(S):	3 December 2002
JUDGMENT DATE:	3 December 2002
PARTIES :	REGINA v Robert Darren McLEOD
JUDGMENT OF:	Mason P at 1; Meagher JA at 14; Heydon JA at 17

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL:	Applicant: M Pickin Crown: T Bailey
SOLICITORS:	Applicant: Crown: S E O'Connor, Public Prosecutions
DECISION:	Application refused.