Grant v R [2010] NSWCCA 44

New South Wales Court of Criminal Appeal

CITATION: Grant v R [2010] NSWCCA 44

HEARING DATE(S): 10 February 2010

JUDGMENT DATE: 16 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 68; Harrison J at 69

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - verdict unreasonable or unsupportable having regard to evidence - misdirection and non-direction - effect of misdirection and non-direction - review of evidence

LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED : R v Lawrence (1980) 1 NSWLR 122 R v Gregory [2002] NSWCCA 199

PARTIES: John Harvey Grant (Appellant) The Crown

FILE NUMBER(S): CCA 2002/2315

COUNSEL: Unrepresented (Appellant) Nicole Noman (Crown)

SOLICITORS: Unrepresented Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2002/7008

LOWER COURT JUDICIAL OFFICER: Davidson AJ

LOWER COURT DATE OF DECISION: 18 June 2004

IN THE COURT OF CRIMINAL APPEAL 2002/2315

McCLELLAN CJ at CL HOWIE J HARRISON J

TUESDAY 16 MARCH 2010 GRANT, John Harvey v R Judgment 1 McCLELLAN CJ at CL: On 21 July 2001 the appellant stabbed his partner, Cheryl Mort, 37 times. She died later in hospital. The appellant was convicted after a trial with a jury of her murder. 2 At his trial the appellant accepted that he was responsible for killing the deceased but argued that he was not guilty of murder but rather of manslaughter on the grounds of provocation. Although not raised by the defence the trial judge also left an issue of self defence with the jury. 3 The appellant was represented by counsel at his trial but acted for himself in the appeal. He filed written submissions and elected not to appear in person before this Court. Accordingly the matter has been considered having regard to the written material from the appellant and from the Crown. Some of the appellant's document is difficult to understand but I am satisfied that I have identified the substantive arguments which he seeks to make. 4 The jury returned a verdict of guilty of murder on 6 May 2004. The appellant was sentenced on 18 June 2004 to a term of imprisonment of 16 years with a non-parole period of 11½ years. 5 The appellant did not file his notice of appeal until 5 June 2009. Accordingly, the appeal has been brought very substantially beyond the time provided by the Criminal Appeal Act 1912 (see s 3A(1)(b) and 3B(1)(a) of the Criminal Appeal Act). He explained the delay as being due to his failed attempts to obtain legal aid. The appellant placed before this Court material which confirms that he had sought legal aid to assist in an appeal which had been denied. 6 Although the Crown submitted that the delay should not be excused and leave to appeal should be refused, there was no submission that the Crown was prejudiced because of the delay in responding to the appeal. This Court has emphasised on previous occasions that where there is a considerable delay in lodging an appeal the Court will look carefully at whether leave to appeal should be granted (see R v Lawrence (1980) 1 NSWLR 122 at [148]; R v Gregory [2002] NSWCCA 199 at [41]). In the present case the delay is considerable. However, a person who has been convicted of murder will understandably seek out assistance in pursuing an appeal and will experience difficulties if that assistance is not available and they must prosecute the appeal themselves. Although the evidence in support of the application is not fulsome I am satisfied that leave should be granted in the present case.