Regina v Wilson [2005] NSWCCA 20

Reported Decision : 62 NSWLR 346

New South Wales Court of Criminal Appeal

CITATION: Regina v Wilson [2005] NSWCCA 20

HEARING DATE(S): 03/02/2005

JUDGMENT DATE: 15 February 2005

JUDGMENT OF: Hunt AJA at 1; Grove J at 56; James J at 60

DECISION: 1. The appeal against conviction is dismissed; 2. Leave to appeal against sentence; 3. The sentence appeal is upheld; 4. The sentence of imprisonment for nine years is quashed and a new head sentence of imprisonment for six years commencing on 28 October 2003 is imposed with a non-parole period of four years and six month.. The earliest day on which it appears that the appellant will become eligible for release on parole is 28 April 2008.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Appeal against conviction - Directions as to the absence of any evidence from the accused - Whether "desirable" in this case for full "Azzopardi" direction to be given - No reference in direction given to some evidence not available to fill in gaps in Crown case or as make-weight in assessing whether Crown has proved its case beyond reasonable doubt - No complaint at trial as to adequacy of summing-up - Rule 4 - Need to show that error led to miscarriage of justice for leave to rely on error. - Whether missing ingredients of "Azzopardi" direction "desirable" in this case - Whether those ingredients directed to weight to be given to hearsay evidence of exculpatory statements by accused to police or to preventing jury from reasoning that, if the accused had any answer to the Crown case or to a particular part of the Crown case he or she would have given evidence of that, and that he did not give evidence because his or her evidence would have filled in those gaps or added to the weight of the Crown case. - Reliance by appellant in Regina v Macris [2004] NSWCCA 261 - whether ruling that nothing in the facts of that case would have made a full "Azzopardi" direction "inappropriate" demonstrated that it was "desirable" for such a direction to be given - whether correctly decided. - Appeal against sentence - misdirection as to existence of recognised range of sentences for manslaughter of young child - matters of aggravation referred to without indicating whether accepted or rejected - reduced sentence.