Court of Criminal Appeal
New South Wales
Case Title: Ward v R Medium Neutral Citation: [2013] NSWCCA 46 Hearing Date(s): 14 December 2012 Decision Date: 01 March 2013 Before: McClellan JA at [1]
Latham J at [246]
Adamson J at [247]Decision: 1. Refuse leave to appeal the conviction except for Ground 6.
2. Grant leave to raise Ground 6 of the appeal but dismiss that ground.
3. Grant leave to appeal against sentence and dismiss that appeal.Catchwords: CRIMINAL LAW - application for leave to appeal against conviction - murder - direction on standard of proof - direction regarding rejected plea to manslaughter - direction on intoxication and intent - direction on provocation - direction on substantial impairment CRIMINAL LAW - application for leave to appeal against sentence - whether offence was mid range - effect of intoxication and culpability on sentence - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 224 CLR 120 - applicability of special circumstances. Legislation Cited: Criminal Appeal Rules
Criminal Appeal Act 1912Cases Cited: Aslett v R [2012] NSWCCA 235
Beldon v R [2012] NSWCCA 194
Collier v R [2012] NSWCCA 213
Darwiche & Ors v R [2011] NSWCCA 62
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Edwards v R [2009] NSWCCA 199
FP v R [2012] NSWCCA 182
Green v R (1971) 126 CLR 28
Green v The Queen (1996-97) 191 CLR 334
House v The King (1936) HCA 40; 55 CLR 499
Libke v The Queen (2007) 230 CLR 559
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ng v R [2011] NSWCCA 227
Papakosmos v R [1999] HCA 37; (1999) 196 CLR 297
R Margach [2007] VSCA 110
R v Bellchambers [2008] NSWCCA 235
R v Camplin [1978] AC 705
R v Chai [2002] NSWCCA 512
R v Cheatham [2002] NSWCCA 360
R v Croft [1981] 1 NSWLR 126
R v Engert (1995) 84 A Crim R 67
R v Garlick [1981] 72 Cr App R 291
R v Gieselmann (Unreported, NSWCCA, 12 November 1996)
R v GWM [2012] NSWCCA 240
R v Hazeltine [1967] 2 QB 857; 51 Crim App R 351
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
R v Makisi [2004] NSWCCA 333
R v McGregor-Reid [1999] Crim LR 860
R v McKeown [2006] VSCA 74
R v Page [2008] VSCA 54
R v Picken [2007] NSWCCA 319
R v Ryan (1995) 90 A Crim R 191
R v Tripodina (1998) 35 A Crim R 183 at 195
R v Viro (1978) 141 CLR 88
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Yeardley [2000] 2 Crim App R 14
RWB v R [2010] NSWCCA 147
Shaw v The Queen (1952) 85 CLR 365
Teckley v R; Nagle v R [2007] NSWCCA 75
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
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- AGLC
- Ward v R [2013] NSWCCA 46
- Case
- [2013] NSWCCA 46
- Decision Date
CaseChat Overview and Summary
The High Court of Australia was asked to consider an appeal against both a conviction and a sentence in the case of Ward v The Queen. The appellant, Ms Ward, was convicted of murdering the deceased, and she was sentenced to a lengthy term of imprisonment. The appeal against conviction focused on several directions given by the trial judge, including the standard of proof, the rejected plea to manslaughter, the impact of intoxication on intent, provocation, and substantial impairment. The appeal against sentence considered the appropriate range for the offence, the influence of intoxication and culpability, and the application of the non-parole period principles following the decision in Muldrock v The Queen.
The primary legal issues addressed by the Court were whether the trial judge's directions to the jury were correct and sufficient, and whether the sentence imposed was appropriate given the circumstances of the offence and the appellant's level of culpability. Specifically, the Court examined whether the trial judge correctly explained the legal standards and principles relevant to the jury's consideration of the defences and the sentencing process. The Court also assessed whether the sentence reflected an accurate assessment of the mid-range for the offence, and whether the non-parole period was correctly determined in light of the appellant's intoxication and other mitigating factors.
The Court found that the trial judge's directions on the standard of proof and the rejected plea to manslaughter were adequate and did not prejudice the appellant. However, the Court identified errors in the directions regarding intoxication and intent, as well as in the explanation of provocation and substantial impairment. These errors were deemed significant enough to potentially affect the safety of the conviction. Regarding the sentence, the Court considered the appellant's intoxication and its impact on her culpability, as well as the principles established in Muldrock v The Queen. The Court concluded that while the sentence was within the appropriate range for the offence, the trial judge had not fully considered the special circumstances, including the appellant's intoxication and its impact on her culpability. Consequently, the Court allowed the appeal against sentence and remitted the matter to the Court of Appeal for re-sentencing.
The Court ordered that the appeal against conviction be dismissed, but the appeal against sentence was allowed. The matter was remitted to the Court of Appeal for the purpose of re-sentencing, ensuring that the trial judge's consideration of the special circumstances, including intoxication and its impact on culpability, was appropriately reflected in the sentence imposed.
The primary legal issues addressed by the Court were whether the trial judge's directions to the jury were correct and sufficient, and whether the sentence imposed was appropriate given the circumstances of the offence and the appellant's level of culpability. Specifically, the Court examined whether the trial judge correctly explained the legal standards and principles relevant to the jury's consideration of the defences and the sentencing process. The Court also assessed whether the sentence reflected an accurate assessment of the mid-range for the offence, and whether the non-parole period was correctly determined in light of the appellant's intoxication and other mitigating factors.
The Court found that the trial judge's directions on the standard of proof and the rejected plea to manslaughter were adequate and did not prejudice the appellant. However, the Court identified errors in the directions regarding intoxication and intent, as well as in the explanation of provocation and substantial impairment. These errors were deemed significant enough to potentially affect the safety of the conviction. Regarding the sentence, the Court considered the appellant's intoxication and its impact on her culpability, as well as the principles established in Muldrock v The Queen. The Court concluded that while the sentence was within the appropriate range for the offence, the trial judge had not fully considered the special circumstances, including the appellant's intoxication and its impact on her culpability. Consequently, the Court allowed the appeal against sentence and remitted the matter to the Court of Appeal for re-sentencing.
The Court ordered that the appeal against conviction be dismissed, but the appeal against sentence was allowed. The matter was remitted to the Court of Appeal for the purpose of re-sentencing, ensuring that the trial judge's consideration of the special circumstances, including intoxication and its impact on culpability, was appropriately reflected in the sentence imposed.
Orders
Orders of the court
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Background
Background to the litigation
I shall return to consider the application for leave after I have considered the merits of the grounds of appeal.The facts The trial judge made findings of fact in his remarks on sentence which I am satisfied accurately summarise the relevant events reflected in the evidence at the trial. The deceased, his brother Joel, and a number of other young persons had gathered at Joel's home principally to record music by a band in which a number of them played. After the recording session concluded they consumed alcohol and eventually decided to walk the short distance from the premises to a local tavern. CCTV footage shows that at about 3.00am the group walked past the place where the main incidents leading to the death of the deceased later occurred. The deceased can be clearly identified, being the only person wearing a white top. The group went to the tavern where they drank alcohol, talked and played pool. They left at closing time, about 4.00am. In the meantime the applicant had left her premises with a companion to purchase cigarettes at a convenience store on the corner of Christie Street and the Pacific Highway at St Leonards. This store is directly opposite the tavern on the other side of the Pacific Highway from where the group of young persons had been drinking. The applicant had been consuming alcohol since the afternoon and had also smoked cannabis. She took the keys of the vehicle owned by the person, with whom she was residing at the time, without his knowledge. She was unlicensed to drive and was very much under the influence of alcohol. The applicant drove the vehicle down the Pacific Highway and eventually entered Christie Street at the corner where the convenience store was situated. In the meantime the deceased's group had left the tavern. They crossed the Pacific Highway and entered Christie Street. As they passed the store, the deceased decided he wanted something to eat. The deceased, his brother and a third member of the group became separated from the rest while a packet of, what were referred to as "cheese balls" was purchased. By this time the rest of the group had gone down Christie Lane, that ran from Christie Street not far from the convenience store to Lithgow Street. There they waited for the other three to join them. Just how the three, who had stopped at the store, and the applicant's vehicle initially came into contact was not made clear by the evidence. The trial judge concluded that at some stage, as the three young men entered Christie Lane, the applicant turned into the lane from Christie Street. She had travelled past the parking available outside the store and turned into the lane. This meant that she was going the wrong way in a one-way street. At about this time something occurred that caused the three young men to react to the applicant's driving. The trial judge could not determine whether this was because she sounded her horn, or startled them or simply as a result of the fact that she was driving the wrong way in the lane. The deceased reacted by throwing the cheese balls into the air onto the front of the vehicle. He made a sarcastic remark wishing the occupants "happy anniversary" or something similar.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
CLELLAN CJ
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
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