Goebel-McGregor v Regina [2006] NSWCCA 390

New South Wales Court of Criminal Appeal

CITATION: Goebel-McGregor v Regina [2006] NSWCCA 390

HEARING DATE(S): 24 November 2006

JUDGMENT DATE: 15 December 2006

JUDGMENT OF: James J at 1; Hidden J at 131; Hislop J at 132

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.

CATCHWORDS: Criminal Law - Provocation - Crimes Act s 23 - Trial judge's directions on provocation.Trial Judge erred in law in his directions to the jury

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Rules

R v Khalouf [2005] NSWCCA 395 CASES CITED: Green v The Queen (1997) 191 CLR 334 Edwards v The Queen (1993) 178 CLR 193

PARTIES: Barry David Goebel-McGregor v Regina

FILE NUMBER(S): CCA 2005/2410

COUNSEL: L Lamprati SC - Crown T Watts - Appellant

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Crown Hal Ginges of Hal Ginges & Co - Appellant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70092/03

LOWER COURT JUDICIAL OFFICER: Newman AJ

LOWER COURT DATE OF DECISION: 9/12/02

IN THE COURT OF CRIMINAL APPEAL 2005/2410

JAMES J HIDDEN J HISLOP J

Friday 15 December 2006 Barry David GOEBEL-McGREGOR v REGINA Judgment

1 JAMES J: Barry David Goebel-McGregor ("the appellant") appealed against his conviction after a trial in the Supreme Court before Newman AJ and a jury on a charge of having murdered Vivien Acheson ("the deceased"), his former de facto wife, at Guyra on 8 December 2002. 2 Newman AJ sentenced the appellant to a term of imprisonment for twenty years with a non-parole period of fifteen years, commencing on 9 December 2002, the date on which the appellant was arrested and from which he had remained in custody. In the event of his appeal against conviction being dismissed, the appellant seeks leave to appeal against the sentence imposed by Newman AJ. 3 When the appellant was indicted before Newman AJ on the charge of murder, he pleaded not guilty of the murder but guilty of the manslaughter of the deceased. The Crown did not accept the plea of guilty of manslaughter in discharge of the indictment and the trial proceeded on the charge of murder. 4 At the trial, consistently with the appellant's plea of guilty to the manslaughter of the deceased, there was no issue that the deceased had died on 8 December 2002 or that the appellant had done an act causing her death, by shooting her in the back of the head. Nor, notwithstanding assertions by the appellant when he had been interviewed by the police that he had not sighted the firearm before firing it and had intended only to frighten the deceased, was there any real issue that the appellant had shot the deceased with the intent required for murder. The appellant was trained in the use of firearms, the shot had been fired at close range and, as already stated, the projectile had struck the deceased towards the back of the head. 5 The live issues at the trial were whether the Crown could prove beyond reasonable doubt that the appellant had not acted under provocation in shooting the deceased (s 23 Crimes Act) and whether the appellant could prove on the balance of probabilities that at the time of shooting the deceased the appellant's capacity to understand events or to judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition and whether any impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A Crimes Act). 6 By returning a verdict of guilty of murder the jury showed that in their view the Crown had succeeded in disproving that the appellant had acted under provocation and the appellant had not succeeded in proving all of the elements of the partial defence of substantial impairment. 7 At the trial evidence was given by a large number of witnesses in the Crown case and a recorded interview of the appellant by police on 9 December 2002 was tendered and admitted into evidence in the Crown case. The appellant gave evidence in the defence case. Two psychiatrists Dr Skinner and Dr Allnutt gave evidence in the defence case relevant to the defence of substantial impairment and another psychiatrist Dr Delaforce gave evidence in a Crown case in reply to the evidence of Dr Skinner and Dr Allnutt. Having regard to the nature of the grounds of appeal against conviction, it will be sufficient to give a fairly concise summary of the evidence at the trial.