A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102

A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102

Fresh and compelling evidence, not available at the time of trial, as well as unreliability of key trial evidence, meant no reasonable jury could be satisfied beyond reasonable doubt of Mr McDermott's guilt. The case against the appellant was so undermined that the only safe verdict was acquittal, and the conviction...

Source-derived case information.

Parties
Appellant: Frederick Lincoln McDermott; Respondent: Regina
Jurisdiction
Australia
Judgment Date
06 May 2013
Procedural Posture
Criminal Appeal / Reference Under S 77(1)(b) Crimes (appeal and Review) Act 2001; Appeal Determination
Outcome
Conviction set aside; verdict of acquittal entered.
Legal Topics
Appeal After Conviction, Fresh Evidence, Jurisdiction After Death of Convicted Person, Miscarriage of Justice, Murder Conviction, Royal Commission Findings
Criminal Law Appeal After Conviction Fresh Evidence Jurisdiction After Death of Convicted Person Miscarriage of Justice Murder Conviction Royal Commission Findings

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Summary, issues, holding and outcome

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Parties

Frederick Lincoln McDermott

Appellant

Regina

Respondent

Procedural Posture

Criminal Appeal / Reference Under S 77(1)(b) Crimes (appeal and Review) Act 2001; Appeal Determination

Legal Issues

  1. 1 Whether the Court had jurisdiction to deal with the conviction notwithstanding the death of the appellant
  2. 2 Whether the conviction was a miscarriage of justice in light of new and fresh evidence

Ratio Decidendi

Fresh and compelling evidence, not available at the time of trial, as well as unreliability of key trial evidence, meant no reasonable jury could be satisfied beyond reasonable doubt of Mr McDermott's guilt. The case against the appellant was so undermined that the only safe verdict was acquittal, and the conviction was a miscarriage of justice. The Court had jurisdiction to hear and determine the reference, despite the death of the convicted person, as the statutory power did not require personal action by the convicted person.

Court Disposition

Conviction set aside; verdict of acquittal entered.

Orders

  • Conviction of Frederick Lincoln McDermott set aside.
  • Verdict of acquittal entered in lieu thereof.