R v Knight [2005] NSWCCA 241

New South Wales Court of Criminal Appeal

CITATION: R v Knight [2005] NSWCCA 241

HEARING DATE(S): 06/07/2005

JUDGMENT DATE: 14 July 2005

JUDGMENT OF: Grove J at 1; Howie J at 2; Rothman J at 84

DECISION: The appeal against conviction is dismissed. Leave to appeal against sentence is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Summing up - failure to give direction on absence of motive in circumstantial case - Evidence - failure to give warning under s165 of Evidence Act on the basis that witness may be bias - Sentencing - gaol murder - sentence not excessive.

LEGISLATION CITED: Evidence Act 1995 - ss 137, 165(1)(a)

R v Fowler [2003] NSWCCA 321 R v El-Azzi [2004] NSWCCA 455 Plomp v The Queen (1963) 110 CLR 234 CASES CITED: De Gruchy v The Queen (2002) 211 CLR 85 R v Fernando (1992) 76 A Crim R 58 R v Newman and Simpson (2004) 145 A Crim R 361

PARTIES: Regina v Mark Dempsey Knight

FILE NUMBER(S): CCA 2005/287

D. Arnott - Crown COUNSEL: D.A. Wetmore - Appellant

S. Kavanagh - Crown SOLICITORS: Craddock Murray Neumann - Appellant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70021/03

LOWER COURT JUDICIAL OFFICER: Barr J

IN THE COURT OF CRIMINAL APPEAL 2005/287

GROVE J HOWIE J ROTHMAN J

THURSDAY 14 JULY 2005 Regina v Mark Dempsey KNIGHT Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: After a trial by jury conducted before Barr J (the Judge), the appellant was convicted of murder. As a consequence of the conviction the Judge sentenced the appellant to imprisonment for 22 years with a non-parole period of 16½ years. The appellant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him. 3 The appellant relied initially upon a number of grounds of appeal concerned with the manner in which the trial was conducted, admissibility of evidence, and the summing up. However counsel, who appeared on the appeal, withdrew all grounds of appeal except those arising from the evidence of a Crown witness named Rose. Although ground 8 asserted that the verdict was against the weight of the evidence, it was no longer asserted that the verdict was unreasonable or against the evidence but that rather that it was unsafe having regard to the admission of Rose's evidence. 4 The case presented by the Crown was of a circumstantial nature. It relied principally upon forensic evidence and, in particular, DNA evidence to identify the appellant as one of the persons involved in the attack upon the deceased that resulted in his death. By that evidence the Crown sought to show that the appellant's exculpatory version of events surrounding the killing of the deceased could not possibly be true.