Whitmore v The Queen; the Queen v Whitmore - [2010] NSWCCA 157

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
WHITMORE v THE QUEEN; THE QUEEN v WHITMORE [2010] NSWCCA 157

FILE NUMBER(S):
2008/13907

HEARING DATE(S):
3 May 2010

JUDGMENT DATE:
21 July 2010

PARTIES:
Katrina Megan Whitmore – Appellant/Respondent
The Queen – Respondent/Appellant

JUDGMENT OF:
Basten JA Johnson J Rothman J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2008/13907

LOWER COURT JUDICIAL OFFICER:
Adams J

LOWER COURT DATE OF DECISION:
10 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[R v Whitmore] [2009] NSWSC 520

COUNSEL:
Mr S J Odgers SC - Appellant/Respondent
Mr P M Miller for the Crown

SOLICITORS:
Bayside Solicitors – Appellant/Respondent
S Kavanagh (Solicitor for Public Prosecutions) for the Crown

CATCHWORDS:
CRIMINAL – appeal – conviction – whether misdirection in summing up to jury – repetition of part of correct document – principle correctly stated in document before jury – failure to object
CRIMINAL – appeal – conviction – verdict of jury unreasonable or unsupported on evidence – unreliability of witness – [Criminal Appeal Act 1912] (NSW) s 6(1)
CRIMINAL – appeal – sentencing – alternate bases for conviction – finding of facts by trial judge – standard of proof
CRIMINAL – appeal – sentencing – murder – manifest inadequacy – assessing seriousness of offence based on facts and inferences of trial judge – objective gravity of offence, aggravating circumstances, prior convictions, offender history

LEGISLATION CITED:
[Crimes (Sentencing Procedure) Act 1999] (NSW), ss 21A, 54A, 54B; Table to Div 1A, Pt 4, item 1
[Criminal Appeal Act 1912] (NSW), ss 5, 5D, 6, 10
Criminal Appeal Rules, rr 3A, 3B

CATEGORY:
Principal judgment

CASES CITED:
[Einfeld v Regina] [2010] NSWCCA 87
[GAS v The Queen] [2004] HCA 22; 217 CLR 198
[M v The Queen] [1994] HCA 63; 181 CLR 487
[MFA v The Queen] [2002] HCA 53; 213 CLR 606
[Mulato v R] [2006] NSWCCA 282
[R v Harris] [1961] VR 236
[R v Holton] [2004] NSWCCA 214
[R v Isaacs] (1997) 41 NSWLR 374
[R v Sandford] (1994) 72 A Crim R 160

TEXTS CITED:

DECISION:
(1) In the appeal of Katrina Whitmore –
(a) extend time to seek leave to appeal;
(b) grant leave to challenge the directions to the jury;
(c) dismiss the appeal.
(2) In the Director’s appeal against sentence – dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/13907004
CCA 2008/13907003
BASTEN JA
JOHNSON J
ROTHMAN J
21 July 2010

Katrina Megan WHITMORE v THE QUEEN;
THE QUEEN v Katrina Megan WHITMORE

Headnote

On the night of Australia Day 2007, Joseph Durrant (now deceased) and Guy Marrett were walking home in Mount Pritchard, Sydney. As the two men walked past a house on Phyllis Street, a dog barked at them. A dispute broke out with the residents in that house, which included the appellant (Katrina Whitmore), her partner (Steven Sotiropoulos), the appellant’s brother (Frederick Whitmore) and his partner (Chantelle Pullen). A fight resulted, involving the appellant, Mr Durrant, Mr Whitmore, Mr…

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.

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Details

Case: [2010] NSWCCA 157
Decision Date: 21 July 2010

CaseChat Overview and Summary

In this case, the appellant, Whitmore, appealed against his conviction and sentence for murder. The matter was heard in the Court of Criminal Appeal. The appeal raised several issues, including whether the summing up to the jury contained a misdirection, whether the verdict of the jury was unreasonable or unsupported by the evidence, and whether the sentence was manifestly inadequate. The appeal also touched on the standard of proof required for findings of fact by the trial judge.

The court examined whether there was a misdirection in the summing up to the jury. The court found that the principle was correctly stated in the document before the jury and that the appellant failed to object to the repetition of part of the correct document. The court held that the repetition did not constitute a misdirection. The court then considered whether the verdict of the jury was unreasonable or unsupported by the evidence, particularly in light of the unreliability of a key witness. The court concluded that the evidence supported the verdict and that the unreliability of the witness did not render the verdict unreasonable or unsupported.

The court also addressed the issue of whether the sentence was manifestly inadequate. The court assessed the seriousness of the offence based on the facts and inferences drawn by the trial judge, considering the objective gravity of the offence, any aggravating circumstances, and the offender's history. The court found that the sentence was not manifestly inadequate, given the circumstances of the case.

The final orders of the court upheld the conviction and sentence, dismissing the appeal.

Orders