White v The King

Case [2025] NSWCCA 141


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: White v R [2025] NSWCCA 141
Hearing dates: 9 July 2025
Date of orders: 12 September 2025
Decision date: 12 September 2025
Before: 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

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A, 44

Crimes Act 1900 (NSW), ss 18, 19A, 23A, 33A, 93GA

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), s 166

Firearms Act 1996 (NSW), ss 7, 36

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 23A, 28, 30, Pt 3

Weapons Prohibition Act 1998 (NSW), s 7

Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Caristo v R [2011] NSWCCA 7

Chandler v R [2022] NSWCCA 124

Chang v R [2016] NSWCCA 296

CM v R [2013] NSWCCA 341

Crane v R [2024] NSWCCA 87; (2024) 107 MVR 272

Davidson…

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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.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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