Richards v The Queen - [2012] ACTCA 10

DANIEL LEE RICHARDS v THE QUEEN
[2012] ACTCA 10 (7 February 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 31 - 2011
No. SCC 30 of 2011
No. SCC 32 of 2011

Judges: Higgins CJ, Penfold and North JJ
Court of Appeal of the Australian Capital Territory
Date: 7 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 - 2011
  )          No. SCC 30 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 32 of 2011
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DANIEL LEE RICHARDS
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Penfold and North JJ
Date:  7 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be partly upheld.

The sentence imposed by Nield AJ be varied as follows:

(i) with respect to the offence of burglary, the period of imprisonment be reduced from three years and two months to two years;

(ii) with respect to the offence of theft, the period of imprisonment be reduced from one year to six months, and served concurrently with the above sentence;

(iii) with respect to the offence of driving a motor vehicle without consent, the period of imprisonment remain at one year and seven months, but be served concurrently with the sentence for burglary;

(iv) a non-parole period of one year and six months dating from 29 October 2010 be imposed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 - 2011
  )          No. SCC 30 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 32 of 2011
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DANIEL LEE RICHARDS
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Penfold and North JJ
Date:  7 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Mr Richards appeals against sentences which were imposed upon him by Nield AJ on 30 May 2011. On one count of driving a motor vehicle without the authority of the owner, he was sentenced to one year and seven months’ imprisonment, commencing from 29 October 2010. In respect of a count of burglary, he was sentenced to three years and two months from 29 August 2011. He was also given a sentence of one year for the offence of theft, to commence on 29 November 2011. That sentence was to be served wholly concurrently with the sentence for the burglary, while nine months of the sentence for taking the motor vehicle was to be served concurrently with the sentence for burglary.

The total head sentence, then, was four years, and a non-parole period of two years and nine months was fixed. That commenced on 29 October 2010 and concludes on 28 July 2013.

It is our view that the sentences imposed were, with one exception, excessive. The one exception is the count for…

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 Richards v The Queen

Details

AGLC: Richards v The Queen [2012] ACTCA 10
Case: [2012] ACTCA 10
Decision Date: February 7, 2012

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Richards, for the offence of murder. The case was heard by the High Court of Australia.

The High Court was required to determine whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, and if so, whether the conviction for murder should be upheld or substituted with a conviction for manslaughter.

The Court reasoned that the evidence presented at trial, particularly the appellant's own testimony regarding the deceased's aggressive behaviour and threats, was capable of supporting a finding of provocation. The legal principle applied was that where there is evidence from which a jury might find provocation, the judge is obliged to direct the jury on that defence, even if the defence was not explicitly raised by the accused. The failure to do so in this instance constituted a miscarriage of justice.

Consequently, the High Court ordered that the appeal be partly upheld, quashing the conviction for murder and remitting the matter to the Supreme Court for a new trial on the charge of manslaughter.

Orders

Orders of the court

The appeal be partly upheld.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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