Duffy v R [2017] NSWCCA 77

Duffy v R [2017] NSWCCA 77

Leave to rely on the unobjected-to conviction grounds was refused because the trial judge's directions on joint criminal enterprise, circumstantial evidence and lies were adequate in the circumstances. The unreasonable verdict challenge failed because, without assuming the jury wholly rejected Ms Evans' evidence, the combined evidence of the applicant's presence, failure to assist, conduct after the killing, circumstantial matters and lies provided no basis for concluding that the jury must have entertained a reasonable doubt. Leave to appeal against sentence was granted, but the appeal was dismissed because the sentencing judge's finding that the applicant physically assisted by holding...

Jurisdiction
Australia
Judgment Date
26 April 2017
Procedural Posture
Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal; Appeal From Supreme Court Decision [2015] NSWSC 1321
Outcome
Application for leave to appeal against conviction refused; leave to appeal against sentence granted; sentence appeal dismissed.
Legal Topics
['leave to Appeal Against Conviction' 'manslaughter' 'joint Criminal Enterprise' 'jury Directions' 'unreasonable Verdict' 'circumstantial Evidence' 'consciousness of Guilt Lies' 'leave to Appeal Against Sentence' 'sentencing Fact Finding']
['criminal Law' 'criminal Procedure' 'sentencing'] ['leave to Appeal Against Conviction' 'manslaughter' 'joint Criminal Enterprise' 'jury Directions' 'unreasonable Verdict' 'circumstantial Evidence' 'consciousness of Guilt Lies' 'leave to Appeal Against Sentence' 'sentencing Fact Finding']

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Procedural Posture

Application for Leave to Appeal Against Conviction and Sentence / Court of Criminal Appeal; Appeal From Supreme Court Decision [2015] NSWSC 1321

Legal Issues

  1. 1 ['Whether leave should be granted under r 4 of the Criminal Appeal Rules (NSW) to rely on unobjected-to grounds alleging misdirection on joint criminal enterprise and circumstantial evidence.' 'Whether the trial judge inadequately directed the jury that both agreement and participation were required for joint criminal enterprise and that mere presence or indifference was insufficient.' "Whether the verdict of manslaughter was unreasonable, unsupported by the evidence, or otherwise involved a miscarriage of justice if the jury rejected aspects of Rachael Evans' evidence." 'Whether the sentencing judge erred in finding beyond reasonable doubt that the applicant knelt over or next to the deceased and put pressure on her back and/or arms to hold her down.']

Ratio Decidendi

Leave to rely on the unobjected-to conviction grounds was refused because the trial judge's directions on joint criminal enterprise, circumstantial evidence and lies were adequate in the circumstances. The unreasonable verdict challenge failed because, without assuming the jury wholly rejected Ms Evans' evidence, the combined evidence of the applicant's presence, failure to assist, conduct after the killing, circumstantial matters and lies provided no basis for concluding that the jury must have entertained a reasonable doubt. Leave to appeal against sentence was granted, but the appeal was dismissed because the sentencing judge's finding that the applicant physically assisted by holding...

Court Disposition

Application for leave to appeal against conviction refused; leave to appeal against sentence granted; sentence appeal dismissed.

Orders

  • ['Refuse leave pursuant to r 4 of the Criminal Appeal Rules to rely upon grounds 1 and 3, to the extent that the latter involves a challenge to the directions given to the jury.' 'Refuse leave to appeal pursuant to ground 3, pursuant to s 5(1)(b) of the Criminal Appeal Act, in so far as it alleged that the verdict...