Shepherd v R [2011] NSWCCA 245

Shepherd v R [2011] NSWCCA 245

Although the trial involved error because Scott Shepherd's prior representation was treated as evidence of the truth of an alleged confession by the appellant contrary to Lee v The Queen, leave under Rule 4 was granted and the proviso was applied. On the whole of the properly admitted evidence, including the appellant's post-offence conduct, his suicide note stating "I have done the worst thing ever", other statements, relationship evidence and forensic evidence, the Court was satisfied beyond reasonable doubt that the appellant murdered the deceased and acted with intent to cause grievous bodily harm. No substantial miscarriage of justice had actually occurred, so the conviction appeal...

Jurisdiction
Australia
Judgment Date
17 November 2011
Procedural Posture
Criminal Conviction Appeal / Court of Criminal Appeal Appeal Against Conviction, Including Application for Extension of Time and Leave Under Rule 4 of the Criminal Appeal Rules 1952
Outcome
Extension of time granted; leave under Rule 4 granted to the extent necessary; appeal against conviction dismissed.
Legal Topics
['murder' 'conviction Appeal' 'hearsay' 'admissions' 'prior Inconsistent Statements' 'cross Examination of Own Witness Under S 38 Evidence Act 1995' 'rule 4 Criminal Appeal Rules 1952' 'proviso Under S 6(1) Criminal Appeal Act 1912' 'circumstantial Evidence' 'consciousness of Guilt' 'post Offence Conduct']
['criminal Law' 'evidence' 'criminal Appeals'] ['murder' 'conviction Appeal' 'hearsay' 'admissions' 'prior Inconsistent Statements' 'cross Examination of Own Witness Under S 38 Evidence Act 1995' 'rule 4 Criminal Appeal Rules 1952' 'proviso Under S 6(1) Criminal Appeal Act 1912' 'circumstantial Evidence' 'consciousness of Guilt' 'post Offence Conduct']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Court of Criminal Appeal Appeal Against Conviction, Including Application for Extension of Time and Leave Under Rule 4 of the Criminal Appeal Rules 1952

Legal Issues

  1. 1 ['Whether the trial judge erred in granting leave to the Crown to cross-examine Scott Shepherd under s 38 of the Evidence Act 1995 about a prior representation attributed to the appellant.' 'Whether the trial judge erred in permitting the Crown to use Scott Shepherd\'s prior representation that the appellant said, "How can they love me, I killed their mother", as evidence of the truth of that statement.' 'Whether leave under Rule 4 of the Criminal Appeal Rules 1952 was required and should be granted for Ground of Appeal 2.' 'Whether, despite the conceded Lee error, the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied because no substantial miscarriage of justice actually occurred.' 'Whether the properly admitted evidence proved beyond reasonable doubt that the appellant murdered Gabrielle Best with the requisite intent.']

Ratio Decidendi

Although the trial involved error because Scott Shepherd's prior representation was treated as evidence of the truth of an alleged confession by the appellant contrary to Lee v The Queen, leave under Rule 4 was granted and the proviso was applied. On the whole of the properly admitted evidence, including the appellant's post-offence conduct, his suicide note stating "I have done the worst thing ever", other statements, relationship evidence and forensic evidence, the Court was satisfied beyond reasonable doubt that the appellant murdered the deceased and acted with intent to cause grievous bodily harm. No substantial miscarriage of justice had actually occurred, so the conviction appeal...

Court Disposition

Extension of time granted; leave under Rule 4 granted to the extent necessary; appeal against conviction dismissed.

Orders

  • ['Extend time for the filing of a Notice of Application for Leave to Appeal up to and including 3 December 2010.' 'To the extent necessary, grant leave to the appellant pursuant to Rule 4 of the Criminal Appeal Rules 1952 to argue Ground of Appeal 2.' 'Appeal dismissed.']