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Wardell v The King

Wardell v The King

Case [2025] NSWCCA 26 3 March 2025

Appeal

Sentencing

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wardell v R [2025] NSWCCA 26
Hearing dates: 16 September 2024
Date of orders: 3 March 2025
Decision date: 03 March 2025
Before: Wright J;
Ierace J;
Rigg J
Decision:
(1) Grant the applicant leave to make the application for leave to appeal out of time, pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules.
(2)   Grant the applicant leave to appeal against conviction.
(3)   Dismiss the appeal against conviction.
(4)   Grant the applicant leave to appeal against sentence.
(5)   Dismiss the appeal against sentence.

Catchwords:
CRIME – appeals – appeal against conviction –miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – potential for impermissible circular reasoning by jury – on summing up viewed as a whole jury not deflected from proper task – no miscarriage of justice
CRIME – appeals – appeal against sentence– aggregate sentence – obligation to indicate sentences that would have been imposed if aggregate sentence not imposed – indicative sentences where s 5 Crimes (Sentencing Procedure) Act threshold may not be crossed for offences in isolation – no error in indicating sentences of imprisonment for those offences in the circumstances
CRIME – appeals – appeal against sentence– sentencing considerations – interaction of non-parole period and life expectancy of offender – where trial judge considered life expectancy in determining non-parole period but did not apply a mechanical formula – no error

Legislation Cited:
Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 10(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
Evidence Act 1995 (NSW), ss 55(1), 97, 142
Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.5(5), 4.15

Cases Cited:
Astill v R [2024] NSWCCA 118
The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
BRC v R [2020] NSWCCA 176; 284 A Crim R 124
Davies v R [2019] NSWCCA 45; 277 A Crim R 1Decision Restricted [2022] NSWCCA 259
Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
Director of Public Prosecutions v Roder (a pseudonym) [2023] VSCA 262
Geraghty v R [2023] NSWCCA 47
Gould v R [2023] NSWCCA 103; 377 FLR 26
R v Holyoak (1995) 82 A Crim R 502
Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62
JS v R [2022] NSWCCA 145
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khorami v R; R v Khorami [2021] NSWCCA 228
Mohindra v R [2020] NSWCCA 340
Mol v R [2017] NSWCCA 76
R v JRD [2007] NSWCCA 55

Category: Principal judgment
Parties: Paul Anthony Wardell (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC / L-C Hutchinson (Applicant)
B Hatfield SC / E Nicholson (Respondent)
Solicitors:
Katsoolis + Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/00238018; 2019/00238082
Publication restriction: Pursuant to s 578A…

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 Wardell v The King

Details

AGLC: Wardell v The King [2025] NSWCCA 26
Case: [2025] NSWCCA 26
Decision Date: 03 March 2025

CaseChat Overview and Summary

The appellant, Wardell, appealed against both his conviction and the sentence imposed by the Court of Criminal Appeal. The dispute centred on the adequacy of jury directions given during the trial and the appropriateness of the aggregate sentence imposed by the trial judge. The appeal was heard by the High Court of Australia.

The primary legal issues addressed by the Court were whether the jury directions constituted a miscarriage of justice and whether the trial judge erred in determining the non-parole period and imposing the aggregate sentence. The Court had to assess whether the jury could have been misled by the tendency evidence and directions, and if the aggregate sentence was appropriately determined. The Court found that the jury directions, when viewed as a whole, did not result in a miscarriage of justice and the trial judge did not err in imposing the aggregate sentence.

The Court held that the tendency evidence and directions, while potentially complex, did not result in impermissible circular reasoning that would have deflected the jury from their proper task. The Court also found that the trial judge appropriately considered the offender's life expectancy in determining the non-parole period but did not apply a mechanical formula. The aggregate sentence was considered appropriate given the totality of the offences.

The Court dismissed the appeal against conviction and sentence, affirming the original findings and sentences imposed by the trial judge. The High Court found no error in the trial process or in the imposition of the aggregate sentence.

Orders