This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title:
Sheen v R
Medium Neutral Citation:
[2011] NSWCCA 259
Hearing Date(s):
11 May 2011
Decision Date:
09 December 2011
Jurisdiction:
Before:
Johnson J at 1 Hall J at 180 Price J at 181
Decision:
1. Appeal against conviction dismissed. 2. Leave is granted to appeal against sentence and allow the sentence appeal in part. 3. The sentence imposed for the offence of break, enter and steal on 19 August 2008, being a sentence of imprisonment comprising a non-parole period of three years to commence on 1 September 2008 and to expire on 31 August 2011, with a balance of term of one year to expire on 30 August 2012 is confirmed. 4. The sentence imposed on the fourth count, the offence of specially aggravated break, enter and commit serious indictable offence on 29 August 2008 is quashed and, in its place, the Appellant is sentenced to imprisonment for a non-parole period of five years and three months commencing on 1 September 2009 and expiring on 30 November 2014 with a balance of term of one year and nine months commencing on 1 December 2014 and expiring on 31 August 2016. 5. The earliest date upon which the Appellant will be eligible for release on parole is 30 November 2014.
Catchwords:
CRIMINAL LAW - conviction appeal - convicted at trial of break, enter and steal and specially aggravated break, enter and commit serious indictable offence - whether trial Judge erred in leaving without notice to parties statutory alternative verdict under s.115A(1) Crimes Act 1900 - no practical injustice to Appellant - no miscarriage of justice - whether verdicts inconsistent - whether verdicts of guilty unreasonable - verdicts not inconsistent - verdicts of guilty not unreasonable - conviction appeal dismissed
[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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AGLC
Sheen v R [2011] NSWCCA 259
Case
[2011] NSWCCA 259
Decision Date
CaseChat Overview and Summary
In the case of Sheen v R, the appellant was convicted at trial of break, enter and steal, and specially aggravated break, enter and commit a serious indictable offence. The appellant appealed both the conviction and the sentence. The appeal centred on whether the trial judge erred in not providing a specific direction to the jury regarding the evidence of a particular witness, and whether the verdicts were inconsistent or unreasonable. The court examined the summing up provided to the jury and found that it was sufficient in conveying the need for careful consideration of the evidence, particularly concerning the reliability of the key witness. The court also found that the jury's verdicts reflected a careful evaluation of the evidence.
The legal issues before the court included whether the trial judge erred in leaving without notice to the parties the statutory alternative verdict under section 115A(1) of the Crimes Act 1900, whether there was any practical injustice to the appellant, and whether the verdicts were inconsistent or unreasonable. Additionally, the court examined whether the sentence imposed was appropriate, taking into account the standard non-parole period for the offence.
The court found that there was no practical injustice to the appellant in the trial judge's failure to provide the specific direction to the jury. It was determined that the summing up was sufficient and that the jury's verdicts demonstrated a careful consideration of the evidence. The court also found that the verdicts were neither inconsistent nor unreasonable. Regarding the sentence, the court applied the principles set out in relevant case law and resentenced the appellant in accordance with the standard non-parole period for the offence.
The appeal against the conviction was dismissed, and the appellant was resentenced in accordance with the principles outlined by the court. The specific details of the resentencing are not provided in the text.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
JOHNSON J
HALL J
PRICE J
The Crown submitted that the summing up made clear to the jury the significance of the evidence of Mr Potts with respect to each of the counts and that, in relation to Count 4, there was a considerable amount of evidence in addition to that of Mr Potts, so that a "Murray" direction was not required in that respect. Decision In approaching this ground, it is necessary to keep in mind the fact that the jury acquitted the Appellant on Counts 1 and 3 and returned an alternative verdict of guilty with respect to the second count. It is immediately apparent that the jury was alive to the need to consider carefully the evidence of Mr Potts with respect to each count. Trial defence counsel did not seek a "Murray" direction. In my view, the summing up conveyed sufficiently to the jury the need for care in examining the evidence of Mr Potts, with a particular eye upon the onus and standard of proof which lay upon the Crown. It is clear that the jury understood this aspect of their task. I do not think that anything said in R v Murray or Robinson v The Queen requires that such a direction be given in every case as contended by senior counsel for the Appellant. The decision of this Court in Kaifoto aka Teaupa v R makes clear that no particular form of words is required. The Court will look at the substance of what was conveyed to the jury by the summing up and, in this case, what may be discerned from the various verdicts returned by the jury. The trial Judge gave the jury appropriate directions concerning the process of assessment of the honesty and reliability of witnesses, including Mr Potts, with associated directions concerning the reliance in the main upon the evidence of Mr Potts. With respect to Count 4, there was a considerable volume of evidence in addition to that of Mr Potts. The Appellant acknowledged that he had entered the house of Mr Potts and that there had been a physical confrontation between the two men in which the Appellant had inflicted injuries to Mr Potts. The only real issue with respect to the fourth count was the issue of self-defence, which the jury determined adversely to the Appellant. The evidence of injuries to Mr Potts and the relative lack of injury to the Appellant was pertinent, as was the immediate complaint by Mr Potts to Ms McCarthy, Ms Taylor and Senior Constable Wilkinson. The fact that no application was made at the trial for a direction of this type supports the view that the directions given were sufficient in the context of the trial, a view supported by the verdicts returned by the jury which themselves reflected careful evaluation by the jury of the evidence of Mr Potts. I would refuse the Appellant leave under Rule 4 to rely upon Ground 2(i), but would, in any event, reject this ground of appeal. The Appellant seeks leave under Rule 4 to contend that an inadequate direction was given to the jury concerning the drawing of inferences. This ground relates to the fourth count where an element required proof that the Appellant wounded Mr Potts with intent to do grievous bodily harm.