SW v R

Case [2013] NSWCCA 103 7 June 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SW v R [2013] NSWCCA 103
Hearing dates: 30 November 2012
Decision date: 07 June 2013
Before: McClellan JA at [1]
Hall J at [138]
Davies J at [138]
Decision:
1. Leave to appeal against conviction refused.
2. Leave to appeal against the sentence granted.
3. By majority: sentence imposed by Hulme J. is quashed and in lieu, sentence the appellant to a non-parole period of 30 years commencing 17 November 2007 and expiring 16 November 2037 with an additional term of 10 years expiring 16 November 2047.

Catchwords: CRIMINAL LAW - appeal - Conviction appeal - murder of 7 year old daughter by mother - whether trial judge erred in directions on accused's alleged lies -corroboration evidence relevant to an accused's mental state - directions on consciousness of guilt evidence - directions in relation to the burden in proving intention in circumstances involving intoxication and drug use SENTENCE APPEAL - manifest excess - life imprisonment - consideration and application of s 61Crimes (Sentencing Procedure) Act 1999.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules
Cases Cited: Bellchambers v R [2008] NSWCCA 235
BW v R [2011] NSWCCA 176
DJF v R [2011] NSWCCA 6
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hopley v R [2008] NSWCCA 105
House v The King [1936] HCA 40; (1936) 55 CLR 499
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
R v Ainsworth (1994) 76 A Crim R 127
R v Alexander [1999] NSWSC 413
R v BW & SW (No 3) [2009] NSWSC 1043
R v Cheatham [2001] NSWSC 580
R v Cheatham [2002] NSWCCA 360
R v Cikos [2001] NSWSC 35,
R v De Gruchy [2000] NSWCCA 51; (2000) 110 A Crim R 271
R v Folbigg [2003] NSWSC 53
R v Folbigg [2003] NSWSC 859
R v Fraser [2004] NSWSC 53
R v Fraser [2005] NSWCCA 77
R v Garforth (Unreported, Court of Criminal Appeal, 31 March 1994)
R v Gorman and Armstrong (Unreported, NSWSC, Badgery-Parker J, 25 August 1995)
R v Grant [2002] NSWCCA 243
R v Holton [2004] NSWCCA 214
R v Hughes and Ashfield (Unreported, NSWSC, Badgery-Parker J, 16 December 1994)
R v Israil [2002] NSWCCA 25
R v Jalaty [2006] NSWSC675
R v Jang [1999] NSWSC 1153
R v Kalajzich (1997) 94 A Crim R 41
R v Lane [2011] NSWSC 289
R v Mehta [2009] NSWSC 814
R v Merritt [2002] NSWSC 1159
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
R v Park (Unreported, NSWSC, Sperling J, 3 August 2000)
R v Park [2003] NSWCCA 142
R v Petroff (Unreported, 12 November 1999 NSWSC)
R v Pfitzner [2009] NSWSC 1267
R v Pfitzner [2010] NSWCCA 314
R v PJS[2009] NSWSC 153
R v RHB [2007] NSWSC 1466
R v Sullivan

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 SW v R

Details

AGLC: SW v R [2013] NSWCCA 103
Case: [2013] NSWCCA 103
Decision Date: 07 June 2013

CaseChat Overview and Summary

The case of SW v R involved an appeal against a conviction for murder and a subsequent appeal against the sentence. The appellant, the mother, was convicted of murdering her seven-year-old daughter. The legal issues centred on whether the trial judge erred in the directions provided to the jury regarding the accused's alleged lies, the relevance of corroboration evidence related to the accused's mental state, and the handling of consciousness of guilt evidence. Furthermore, the court had to address the directions given concerning the burden of proving intention in the context of intoxication and drug use.

The court examined whether the trial judge's directions on the accused's alleged lies were appropriate and sufficient for the jury to properly assess the credibility and reliability of the evidence. The court also scrutinised the use of corroboration evidence to support the accused's mental state and whether such evidence was relevant and admissible. Additionally, the court assessed the directions on consciousness of guilt evidence and the burden of proving intention when the accused was under the influence of drugs and alcohol at the time of the offence. Ultimately, the court concluded that the trial judge's directions were adequate, and the evidence presented was sufficient to support the conviction.

The court determined that the trial judge's directions on the accused's alleged lies were appropriate, and the jury was properly guided to assess the credibility and reliability of the evidence. The court found that the corroboration evidence was relevant to the accused's mental state and was properly admitted. The court also concluded that the directions on consciousness of guilt evidence and the burden of proving intention were correctly given and adequately addressed the issues raised. Consequently, the appeal against the conviction was dismissed.

Regarding the sentence appeal, the court considered whether the sentence of life imprisonment was manifestly excessive. The court applied the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 and found that the sentence was not manifestly excessive. The appeal against the sentence was also dismissed.

Orders