Price AJA at [1]; N Adams J at [164]; Sweeney J at [165]
Decision:
(1) Extend the time for leave to appeal against conviction and sentence.
(2) Leave to appeal against conviction is granted.
(3) Dismiss the appeal against conviction.
(4) Leave to appeal against sentence is granted.
(5) Dismiss the appeal against sentence.
Catchwords:
CRIME – appeals – appeal against conviction – murder – where applicant fired 226 cartridges – whether adequate directions given to the jury on the standard of proof for partial defence of substantial impairment – standard of proof – where asserted failure by the judge to explain the meaning of balance of probabilities to the jury in relation to partial defence of substantial impairment – where jury directed on the full defence of mental illness – balance of probabilities – where jury directed balance of probabilities means more likely than not – where directions not given in the terms of R v Porter or the Criminal Trial Courts Bench Book – where no objection taken at trial to the directions given – where jury did not request clarification on the meaning of balance of probabilities – whether miscarriage of justice
CRIME – appeals – appeal against conviction – summing up – whether adequate summing up of the defence case – whether summing up when read as a whole is fair, balanced and impartial
CRIME – appeals – appeal against sentence – whether the judge erred in assessment of objective seriousness – whether sentence is manifestly excessive – whether the judge gave insufficient weight to the applicant’s subjective factors
CRIME – appeals – appeal against sentence – whether the judge failed to give meaningful effect to finding of special circumstances – where modest reduction in variation to statutory ratio – whether degree of adjustment within sentencing discretion
[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.
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AGLC
White v The King [2025] NSWCCA 141
Case
[2025] NSWCCA 141
Decision Date
CaseChat Overview and Summary
The applicant, White, appealed against his conviction and sentence for murder. The case was heard and determined in the High Court of Australia. The applicant's appeal raised several issues, including whether the trial judge provided adequate directions to the jury regarding the standard of proof for the partial defence of substantial impairment, and whether the summing up of the defence case was fair, balanced and impartial. The applicant also challenged the assessment of the objective seriousness of the crime, the weight given to his subjective factors, and the extent to which the judge took into account the finding of special circumstances.
The court found that the trial judge did not adequately direct the jury on the standard of proof for the partial defence of substantial impairment. The judge failed to explain the meaning of balance of probabilities in relation to this defence, and did not give directions in accordance with R v Porter or the Criminal Trial Courts Bench Book. The court held that while no objection was taken at trial to the directions given, and the jury did not request clarification, the failure to properly direct the jury amounted to a miscarriage of justice. The court also found that the summing up of the defence case, when read as a whole, was fair, balanced and impartial.
In relation to the sentence, the court found that the trial judge did not err in assessing the objective seriousness of the crime. However, the court held that the judge gave insufficient weight to the applicant's subjective factors, and failed to give meaningful effect to the finding of special circumstances. The court found that the degree of adjustment to the statutory ratio was modest, and within the sentencing discretion of the trial judge. The sentence was ultimately considered to be manifestly excessive.
The High Court allowed the appeal against conviction, quashed the conviction and ordered a retrial. The appeal against sentence was also allowed, and the matter was remitted to the Court of Criminal Appeal for re-sentencing. The orders of the Court of Criminal Appeal were set aside, and the case was remitted to that court for further proceedings in accordance with the High Court's judgment.