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Shepherd v R

Shepherd v R

Case [2011] NSWCCA 245 17 November 2011

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shepherd v R [2011] NSWCCA 245
Hearing dates: 13 May 2011
Decision date: 17 November 2011
Before: Tobias AJA, Johnson, Hall JJ at [1]
Decision:
Extend time for the filing of a Notice of Application for Leave to Appeal up to and including 3 December 2010.
To the extent necessary, grant leave to the appellant pursuant to Rule 4 of the Criminal Appeal Rules 1952 to argue Ground of Appeal 2.
Appeal dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - appellant convicted of murder of his partner - conversation between appellant and his brother - brother's first version of conversation asserted that appellant said "How can they [the children] love me? I killed their mother" - brother later asserts first version was incorrect and that the appellant said "How can they love me if I killed their mother" - Crown given leave to cross-examine brother under s.38 Evidence Act 1995 - Crown relied on first version as admission of guilt - trial Judge directs jury that first version capable of constituting admission - contended on appeal that error in accordance with Lee v The Queen [1998] HCA 60; 195 CLR 94 - point not taken at trial - whether leave under Rule 4 should be granted - Crown concedes that error occurred at trial - whether proviso applied - Crown case involving circumstantial evidence and direct evidence - by reference to admissible evidence used permissibly, Court satisfied beyond reasonable doubt of guilt of appellant - appeal dismissed
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules 1952
Evidence Act 1995
Cases Cited: R v Shepherd [2006] NSWSC 799
Lee v The Queen [1998] HCA 60; 195 CLR 94
Vickers v R [2006] NSWCCA 60; 160 A Crim R 195
Klein v R [2007] NSWCCA 206; 172 A Crim R 290
R v FDP [2008] NSWCCA 317; 74 NSWLR 645
R v Abusafiah (1991) 24 NSWLR 531
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
R v AA and Ors (No.1) [2009] NSWSC 1414
Weiss v The Queen [2005] HCA 81; 224 CLR 300
DJS v R [2010] NSWCCA 200
RWB v R [2010] NSWCCA 147; 202 A Crim R 209
Kessing v R [2008] NSWCCA 310; 73 NSWLR 22
Cesan v The Queen [2008] HCA 52; 236 CLR 358
AK v The State of WA [2008] HCA 8; 232 CLR 438
Gassy v The Queen [2008] HCA 18; 236 CLR 293
Swansson v R [2007] NSWCCA 67; 69 NSWLR 406
Aslett v R [2006] NSWCCA 49
Cornwell v R [2006] NSWCCA 116; 160 A Crim R 243
Taleb v R [2006] NSWCCA 119
Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
Fox v Percy [2003] HCA 22; 214 CLR 118
The Queen v Hillier [2007] HCA 13; 228 CLR 618
Doja v R [2009] NSWCCA 303;

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 Shepherd v R

Details

AGLC: Shepherd v R [2011] NSWCCA 245
Case: [2011] NSWCCA 245
Decision Date: 17 November 2011

CaseChat Overview and Summary

In the matter of Shepherd v R, the appellant was convicted of the murder of his partner and brought an appeal against the conviction. The appeal centred on the admissibility and interpretation of a conversation between the appellant and his brother. The brother initially recounted the conversation in a way that suggested the appellant had admitted to the murder. However, at a later stage, the brother changed his testimony, stating that the initial version was incorrect and that the appellant had instead said "How can they love me if I killed their mother." The Crown sought to cross-examine the brother under section 38 of the Evidence Act 1995, relying on the initial version of the conversation as an admission of guilt. The trial judge directed the jury that the first version could be considered an admission, a matter which the appellant now contends was erroneous.

The appeal required the court to determine whether the error in the trial judge's direction constituted a miscarriage of justice warranting an appeal under the proviso of Rule 4 of the Uniform Rules of the High Court. The appellant argued that the trial judge's direction was flawed, as per the decision in Lee v The Queen. The Crown conceded that there was an error but contended that the proviso should apply as the case against the appellant was sufficiently strong to satisfy the court of his guilt beyond reasonable doubt, both from circumstantial and direct evidence. The court needed to weigh whether the error was sufficiently material to warrant a new trial, given the strength of the Crown's case.

The court found that despite the error in the trial judge's direction, the Crown's case was compelling enough to uphold the conviction. The court was satisfied beyond reasonable doubt of the appellant's guilt based on the admissible evidence presented during the trial. The appeal was dismissed, and the conviction was upheld. The court determined that the error, although significant, did not undermine the overall reliability of the evidence against the appellant.

Orders