Regina v Strachan [2000] NSWCCA 260

New South Wales Court of Criminal Appeal

CITATION : Regina v Strachan [2000] NSWCCA 260 FILE NUMBER(S) : CCA 60609/99 HEARING DATE(S) : 05/07/00 JUDGMENT DATE : 26 July 2000

PARTIES : Regina v Jeannie STRACHAN JUDGMENT OF : Mason P at 1; James J at 2; Whealy J at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70066/98 LOWER COURT JUDICIAL Sperling J OFFICER :

COUNSEL : W. G. Dawe QC - Crown M. D. Farrar - Appellant SOLICITORS : S. E. O'Connor - DPP Leo & Morrison

LEGISLATION CITED : Criminal Appeal Act 1912 M (1994) 181 CLR 487 at 493 CASES CITED: Jones v The Queen (1997) 191 CLR 439 Fleming v The Queen (1998) 197 CLR 250 at 255-256 DECISION : 1. Extension of time in which to appeal is granted; 2. Appeal against conviction is upheld; 3. The conviction is set aside and, in lieu thereof, order that a verdict of acquittal be entered.

IN THE COURT

OF CRIMINAL APPEAL

60609/99

MASON P JAMES J WHEALY J

WEDNESDAY 26 July 2000

REGINA V Jeannie STRACHAN

JUDGMENT 1 MASON P: I agree with Whealy J. 2 JAMES J: I agree with the judgment of Whealy J. 3 WHEALY J: The appellant was indicted on 10 June 1999 on the following charge: - "That she on or about 6 November 1997 at Wollongong in the State of New South Wales did murder Glen Marjoram". 4 The appellant pleaded not guilty. On 21 June 1999, however, she was found guilty of murder by a jury after trial. On 9 September 1999 the appellant was sentenced to a minimum term of penal servitude of ten years to commence on 8 September 1998 with an additional term of three years commencing on 8 September 2008. 5 The appellant has sought an extension of time in which to appeal or apply for leave to appeal and has filed a notice of appeal and an application for leave to appeal. The grounds of appeal or application are as follows: "The verdict of the jury, in so far as it involved rejection of the plea of self defence raised by the appellant, is unreasonable and is not supported by the evidence." 6 The principles of law governing the approach to be taken by the court when considering a ground of appeal such as the instant one are well established. 7 In M (1994) 181 CLR 487 at 493, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said (p 493): - "In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." 8 The majority judges (at 494) explained the application of the test as follows: - "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." 9 In Jones v The Queen (1997) 191 CLR 439 in the joint judgment of Gaudron, McHugh and Gummow JJ at p 451, their Honours said: "however, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory" (earlier at 450 their Honours had noted that in M's case the majority said that although the phrase "unsafe or unsatisfactory" does not appear in s 6 of the Criminal Appeal Act 1912, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence). More recently in Fleming v The Queen (1998) 197 CLR 250 at 255-256 the court emphasised that although in the past the use of the phrase "unsafe or unsatisfactory" to describe alleged errors of law in criminal verdicts has been used, the phrase is likely to mislead and that attention should given to the precise terms in which s 6 is expressed.