Ward v R - [2006] NSWCCA 321

Reported Decision:
166 A Crim R 273

New South Wales

Court of Criminal Appeal

CITATION: Ward v Regina [2006] NSWCCA 321

HEARING DATE(S): 9 August 2006

JUDGMENT DATE:
10 October 2006

JUDGMENT OF: Tobias JA; Howie J; Rothman J

DECISION: (a) Appeal against conviction dismissed; (b) Grant leave to appeal against sentence, but dismiss the appeal

CATCHWORDS: CRIMINAL LAW – Appeal – Against Conviction – s418(2) & s421 of the Crimes Act 1900 – Whether judge’s repeated references to alternative verdict led jury to believe that a complete acquittal was not reasonably open to it. - SENTENCING – Appeal – Manslaughter – Protean character of manslaughter as an offence – It is necessary to establish a trial judge’s discretion miscarried in the House v King sense.

LEGISLATION CITED: Crimes (Sentencing) Procedure Act 1999, s3A, s21A
Crimes Act 1900, s418(2), s421(2)

CASES CITED: Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 79 ALJR 1048
R v Forbes [2005] NSW CCA 377
R v Hill (1981) 3 A Crim R 397 at 402
R v McDonald (NSWCCA, 12 December 1995)
R v Morabito (1992) 62 A Crim R 82
R v Muddle [2004] NSWSC 403
R v Previtera (1997) 94 A Crim R 76
R v Trevenna (2003) 149 A Crim R 505
Vuni v Regina [2006] NSWCCA 171

PARTIES: Trevor Alan Ward
Regina

FILE NUMBER(S): CCA 2006/258

COUNSEL: A: T Bellanto QC
R: D Woodburne

SOLICITORS: A: Bradfield Anderson
R: S Kavanagh (Public Prosecutions)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/31

LOWER COURT JUDICIAL OFFICER: Whealy J

LOWER COURT DATE OF DECISION: 15 April 2005

CCA 2006/258
SC 2004/31

TOBIAS JA
HOWIE J
ROTHMAN J
Tuesday 10 October 2006

TREVOR ALAN WARD v REGINA

Judgment

1 THE COURT: On 14 March 2005 Trevor Alan Ward (the appellant) was arraigned on an indictment that charged him with the murder of Craig Bradley Buckley (the deceased) on 11 April 2003 at Wetherill Park to which he pleaded not guilty. The trial commenced before Whealy J and a jury of 12 on that date and continued until 22 March 2005 when the jury returned a verdict of not guilty of murder but guilty of manslaughter.

2 The appellant was sentenced by the trial judge on 15 April 2005 to a term of seven years imprisonment to date from 14 February 2005 and to expire on 13 February 2012. His Honour sentenced him to a non-parole period of four years. The first date on which the appellant will be eligible for consideration of release on parole is 13 February 2009.

3 The appellant appeals against his conviction upon the sole ground that he lost the chance to be acquitted of both murder and manslaughter because the trial judge left a finding of manslaughter by reason of an unlawful and dangerous act to the jury. He also seeks leave to…

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 Ward v R

Details

AGLC: Ward v R [2006] NSWCCA 321
Case: [2006] NSWCCA 321
Decision Date: 10 October 2006

CaseChat Overview and Summary

In this case, the appellant, Ward, was convicted of assault occasioning actual bodily harm and assault with intent to rob. The trial judge repeatedly referred to the alternative verdict of manslaughter, which Ward was not convicted of. Ward appealed against both his conviction and sentence. The appeal raised two primary legal issues. The first was whether the trial judge's repeated references to the alternative verdict of manslaughter led the jury to believe that a complete acquittal was not reasonably open to it. The second issue was whether the trial judge's discretion in sentencing for manslaughter miscarried in the sense established by House v R.

The court held that the repeated references by the trial judge to the alternative verdict of manslaughter did not lead the jury to believe that a complete acquittal was not reasonably open to it. The court noted that the jury was properly directed on the law and the evidence, and the repeated references to manslaughter did not amount to an error that would have led to a miscarriage of justice. Regarding the sentencing issue, the court noted that the protean character of manslaughter as an offence means that it is necessary to establish a trial judge's discretion miscarried in the House v King sense. However, the court found that the trial judge had not miscarried his discretion in this case.

The court dismissed the appeal against conviction and sentence. The court found that the trial judge's repeated references to the alternative verdict of manslaughter did not lead the jury to believe that a complete acquittal was not reasonably open to it. The court also found that the trial judge had not miscarried his discretion in sentencing for manslaughter. As a result, the appellant's conviction and sentence were upheld.

Orders