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Benchmark Publication Friday, 18 November 2016 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary Castle v The Queen; Bucca v The Queen (HCA) - criminal law - murder - conviction appeal - exculpatory evidence treated as an ‘admission’ at trial - miscarriage of justice - on appeal, characterisation of the evidence as ‘admission’ constituted error, but proviso applied - on appeal to HC, error occasioned actual miscarriage of justice - convictions quashed, new trials ordered MG v R; AE v R (NSWCCA) - criminal law - conviction appeals - identification evidence - murder - extended joint criminal enterprise - applicants alleged to have been in a group of 6 who attacked and killed the deceased - the main issue at trial turned upon the identification of MG and AE - AE’s verdict not unreasonable - identification of MG unsafe - verdict quashed and verdict of acquittal entered R v Tabalbag (NSWSC) - criminal law - sentence - provocation - manslaughter - offender charged with murder of his partner’s lover - whether offender lost self-control on finding deceased in bed with his partner - plea to manslaughter rejected by Crown - convicted of manslaughter - no aggravating factors - 25% discount - sentenced 6 years, NPP 4 years 6 months R v Blackman (NSWSC) - criminal law - murder - fitness to be tried - accused long term alcoholic with mental health issues - unable to follow course of trial - authorities considered - unfit to be tried - orders made under s14 Health (Forensic Provisions) Act 1900 R v Adams (No 6) (NSWSC) - criminal law - murder - tendency evidence - judge alone trial - Page 1 accused charged with 1983 murder - circumstantial case relying upon doctrine of felony murder - Crown case that accused possessed a tendency to strangle women to force them to submit to penile/vaginal intercourse - necessary Directions identified - consideration of tendency evidence - finding of guilt Gill v The Queen (VSCA) - criminal law - conviction appeal - lies - failure to give evidence - applicant failed to stop at a stop sign and killed 4 people - he gave contradictory statements and failed to give evidence at trial - his counsel addressed the jury on why he did not give evidence - argued miscarriage of justice - leave to appeal refused Nicholls v The Queen (VSCA) - criminal law - conviction & sentence appeal - improper joinder - no cross-admissibility evidence - deliberate decision by defence not to seek severance - circumstances were joinder permitted - residual discretion of appeal court considered - appellant bound by deliberate decision - no miscarriage - appeal dismissed R v Vlies (QCA) - criminal law - conviction appeal - child sexual offences - admissibility of preliminary complaint evidence - whether verdict unreasonable - principles and authorities considered - appellant convicted on 10 counts - complaint evidence properly admitted - appeal dismissed Deakin v Tasmania (TASCCA) - criminal law - sentence appeal - remissions - whether failure to set non-parole period denied appellant access to remissions - remissions system considered - whether failure to set non-parole period rendered sentence manifestly excessive - appeal dismissed Summaries With Link (Five Minute Read) Castle v The Queen; Bucca v The Queen [2016] HCA 46 High Court of Australia Kiefel, Bell, Gageler, Keane & Nettle JJ Criminal law - conviction appeal - murder - deceased attended a car wash and was shot while attempting to alight from a vehicle driven by his former partner, Castle - the prosecution alleged that Castle had lured the deceased to the car wash to be killed and that the actual shooter was Bucca, her new partner - Bucca, on the prosecution case, had been waiting in the vehicle’s boot for the deceased to arrive and had then climbed into the car and shot him - while Bucca did not give evidence, he denied that he was the shooter - Castle gave evidence that the shooter was another person called Grange, who died before the trial commenced - Castle’s evidence was that she had not known that Grange was armed, or that he had planned to harm the deceased - the prosecution case was largely circumstantial - the central issue at trial was whether the prosecution had excluded the reasonable possibility that Grange was the shooter - evidence was given by a witness, Pascoe, of a statement made by Bucca shortly after the Page 2 shooting which the prosecution relied upon as an admission - the appellants were convicted and on appeal, the SA CCA held that Pascoe’s evidence was not capable of being treated as an admission and the trial judge’s direction to the jury to that effect constituted error - the CCA however dismissed the appeals under the proviso - on appeal to the High Court - held: (1) the trial judge’s summing up of Castel’s case - she was entitled to have her case fairly put to the jury - how a judge structures the summing-up and the extent to which the judge reminds the jury of evidence is an matter for individual judgment - the essential requirements are stated in RPS v The Queen (2000) 199 CLR 620, 41 - the obligation to fairly put the accused’s case includes an obligation to explain the basis upon which the jury might properly return a verdict in the accused’s favour - any comment on evidence must make it clear that the determination of the facts is entirely within the jury’s providence - unless there is a need to comment, the wisest course is not to - see B v The Queen (1992) 175 CLR 599, 605 - no error disclosed - (2) the application of the proviso: the error of leaving Pascoe’s evidence of Bucca’s statement as an admission when it was in fact exculpatory, gave rise in each case to a perceptible risk of a miscarriage of justice - this required the verdicts to be set aside unless the CCA was satisfied that no substantial miscarriage actually occurred - however, it was too large a step to conclude that a confession was unlikely to have influenced a jury’s verdict - the question was whether the jury might regard the exculpatory statement as a sufficient basis to entertain a doubt as to the strength of the prosecution’s circumstantial case - the CCA erred in concluding that no substantial miscarriage actually occurred - appeals allowed, convictions quashed, new trials ordered. Castle; Bucca MG v R; AE v R [2016] NSWCCA 228 Court of Criminal Appeal of New South Wales Hoeben CJ at Cl, Davies & Bellew JJ Criminal law - conviction appeals - murder - extended joint criminal enterprise - applicants were alleged to have been in a group of 6 men who attacked and killed the deceased, ED, at a Halloween party in 2010 - MG, AE and SB were tried for murder - the main issue at trial turned upon the identification of MG and AE as persons actually involved in the attack on ED - the Crown relied on a Lonsdale jacket found in a car which had DNA matching MG’s DNA profile on its inside left cuff - MG was found guilty by majority verdict - SB & AE were also found guilty - MG & AE were sentenced to 12 years’ imprisonment, NPP 8 years - on appeal, MG & AE argued that the verdicts of guilty were unreasonable, that the trial judge erred in his directions on extended joint criminal enterprise and circumstantial evidence and in his directions on identification evidence relating to AE - held: (1) AE conviction appeal - whether the verdict was unreasonable under s6(1) Criminal Appeal Act 1912 (NSW) and authorities considered (SKA v The Queen (2011) 243 CLR 400; MFA v The Queen (2002) 213 CLR 606; Hawi v R (2014) 244 A Crim R 169; Perish, Anthony v Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89; Elwood v R [2016] NSWCCA 18) - particular pieces of evidence should not be considered in isolation, but in the context of all the evidence in the Crown case - here, applying the principles and considering the whole of the evidence, the jury was in a better position than this Court to Page 3 assess what was said and how the witnesses said it - on issues such as this, appropriate weight has to be given to the primacy of the position of the jury as the finders of fact - it was well open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt - on the issue of the identification evidence: the applicant argued a Domican Direction was required (Domican v R (1992) 173 CLR 555) - considering the directions given to the jury it could not be said that the jury were unaware or misunderstood the dangers of accepting unqualified identification evidence - this ground was not made out - the directions on joint criminal enterprise were consistent with the High Court’s decisions in McAuliffe v The Queen (1995) 183 CLR 108 and Gillard v The Queen (2003) 219 CLR 1 - see also Miller v The Queen; Smith v The Queen; Presley v DPP (SA) [2016] HCA 30 - leave to appeal granted, appeal dismissed - MG conviction appeal - whether the verdict was unreasonable - the identification evidence: there was no eyewitness evidence which identified MG as participating in the assault on the deceased, or of him even being in the vicinity of the attack when it occurred - the scenarios put forward by MG which are consistent with him not wearing the Lonsdale jacket on the night of the assault were just as reasonable as the scenarios put forward by the Crown - the Lonsdale jacket was distinctive, yet no witness described it and taken at its highest, the DNA evidence simply meant that at one time MG wore it - it was not possible to see how the jury could have been satisfied beyond reasonable doubt that the Lonsdale jacket with its 2 spots of blood and MG’s DNA, when taken with the totality of the evidence, connected MG to the assault on the deceased - it would be dangerous in the circumstances to let the verdict stand - leave granted, appeal allowed, conviction quashed & verdict of acquittal entered.
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