WHITMORE v THE QUEEN; THE QUEEN v WHITMORE [2010] NSWCCA 157

New South Wales Court of Criminal Appeal

CITATION: WHITMORE v THE QUEEN; THE QUEEN v WHITMORE [2010] NSWCCA 157

HEARING DATE(S): 3 May 2010

JUDGMENT DATE: 21 July 2010

JUDGMENT OF: Basten JA at 1; Johnson J at 111; Rothman J at 112

(1) In the appeal of Katrina Whitmore – (a) extend time to seek leave to appeal; DECISION: (b) grant leave to challenge the directions to the jury; (c) dismiss the appeal. (2) In the Director's appeal against sentence – dismiss the appeal.

CATCHWORDS: CRIMINAL – appeal – conviction – whether misdirection in summing up to jury – repetition of part of correct document – principle correctly stated in document before jury – failure to object - CRIMINAL – appeal – conviction – verdict of jury unreasonable or unsupported on evidence – unreliability of witness – Criminal Appeal Act 1912 (NSW) s 6(1) - CRIMINAL – appeal – sentencing – alternate bases for conviction – finding of facts by trial judge – standard of proof - CRIMINAL – appeal – sentencing – murder – manifest inadequacy – assessing seriousness of offence based on facts and inferences of trial judge – objective gravity of offence, aggravating circumstances, prior convictions, offender history

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B; Table to Div 1A, Pt 4, item 1 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6, 10 Criminal Appeal Rules, rr 3A, 3B

CATEGORY: Principal judgment

Einfeld v Regina [2010] NSWCCA 87 GAS v The Queen [2004] HCA 22; 217 CLR 198 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 CASES CITED : Mulato v R [2006] NSWCCA 282 R v Harris [1961] VR 236 R v Holton [2004] NSWCCA 214 R v Isaacs (1997) 41 NSWLR 374 R v Sandford (1994) 72 A Crim R 160