Friend v Regina [2007] NSWCCA 41

Appeal Outcome: Special leave application refused by the High Court - 31 August 2007

New South Wales Court of Criminal Appeal

CITATION: Friend v Regina [2007] NSWCCA 41

HEARING DATE(S): 3 November 2006

JUDGMENT DATE: 22 February 2007

JUDGMENT OF: Spigelman CJ at 1; Sully J at 2; Hislop J at 159

DECISION: Appeal against conviction dismissed

LEGISLATION CITED: Evidence Act 1995 (NSW)

R v Micallef (2002) 136 A Crim R 127 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 CASES CITED: de Gruchy v The Queen (2002) 211 CLR 85 DBG (2002) 133 A Crim R 227 Minniti v The Queen (2006) 159 A Crim R 394 Regina v Middis (NSWSC, unreported, 17 March 1991

PARTIES: Catherine Margaret Friend Regina

FILE NUMBER(S): CCA 2006/1727

COUNSEL: D. Arnott SC - Crown J. Stratton SC/D. Yehia - Appellant

SOLICITORS: S. Kavanagh - Crown Walker Smith - Appellant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2003/58

LOWER COURT JUDICIAL OFFICER: Adams J

LOWER COURT DATE OF DECISION: 26 August 2005

IN THE COURT OF CRIMINAL APPEAL SPIGELMAN CJ SULLY J HISLOP J

2006/1727

22 February 2007 Catherine Margaret FRIEND v REGINA Judgment

1 SPIGELMAN CJ: I agree with Sully J. 2 SULLY J:

Introduction 3 The appellant, Mrs. Friend, was formerly the de facto wife of one Jason Friend. In the very early hours of Friday 18 January 2002, and at some time between midnight and 12.30 a.m. or thereabouts, Mr. Friend, (hereinafter "the deceased"), was shot to death. He had been sleeping alone in the bed which he normally shared with the appellant. Forensic investigations established that a single gun-shot had been fired into the back of the deceased's head, and at point blank range, killing him instantly. It was similarly established that the murder weapon was probably a 12-gauge shotgun; but the actual murder weapon has never been found. 4 In due course the Crown brought to trial jointly, before Adams J and a jury, the appellant and one Philip Grubb. The Crown case against Mr. Grubb was that he had fired the shot that killed the deceased. The Crown case against the appellant was that she had been, at the time of the killing, present in the premises within which the killing took place; and that she had been there aiding and abetting Mr. Grubb. 5 The joint trial commenced on 11 May 2005 and concluded on 30 June 2005. The jury found the appellant guilty of murder; but could not agree upon a verdict in respect of Mr. Grubb. He was subsequently re-tried; but, for a second time, the jury could not agree upon a verdict. 6 The appellant, having been found guilty of murder, was formally convicted of that crime and was sentenced to a substantial term of imprisonment. The appellant now appeals against her conviction; but she does not apply for leave to appeal against her sentence and nothing more need now be said on that latter topic. 7 The following grounds of appeal were notified and argued: "1. The jury's verdict was unreasonable and inconsistent with the evidence. 2. His Honour erred in admitting into evidence the previous consistent statements of the witness Dupon. 3. His Honour erred in not giving a 'Shepherd' direction (Shepherd v The Queen (1990) 170 CLR 573) in relation to the evidence of Mr. Dupon, to the effect that the jury would have to be satisfied beyond reasonable doubt of his evidence before the jury could return a verdict of guilty. 4. His Honour erred in not ordering that the appellant be tried separately from her co-accused, Phillip (sic) Grubb. 5. His Honour erred in directing the jury that 'there may have been witnesses in this case, for all we know, who had a very adverse view about the accused'. " 8 It will be convenient to deal in due course and in the stated order with those grounds of appeal. Were ground 1 to be upheld, then the appropriate order would be one directing the entry of judgment and verdict of acquittal. Were any of the remaining four grounds to be upheld then the proper order would be one for a new trial unless the Court was of the view that, notwithstanding the particular blemish, there had been no substantial miscarriage of justice.