Sumpton v R [2016] NSWCCA 162

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Sumpton v R [2016] NSWCCA 162 Hearing dates: 28 July 2016 Decision date: 10 August 2016 Before: Hoeben CJ at CL at [1] Hall J at [112] Bellew J at [113] Decision: Conviction Appeal: (1) Leave to rely upon Grounds 1 and 4 is refused. (2) Leave to rely upon Ground 2 is granted but the appeal in relation to Ground 2 is dismissed. (3) The appeal in relation to Ground 3 is dismissed.

Sentence Appeal: (i) Leave to appeal is granted. (ii) The appeal is dismissed. Catchwords: CRIMINAL LAW – CONVICTION APPEAL – two counts of arson and one count of murder – victim stabbed and found in partially burned house – whether particular evidence in Crown case needed to be proved beyond reasonable doubt – whether Crown case was a "links in a chain" case – trial run on a different basis – applicant bound by the way in which the trial was run – whether directions should have been given that "alibi" evidence had to be negatived beyond reasonable doubt – whether tendency evidence was wrongly admitted – whether admission of tendency evidence gave rise to a miscarriage of justice – whether jury sufficiently directed that even if defence witnesses disbelieved the Crown still bore the onus of proving its case – appeal dismissed.

CRIMINAL LAW – SENTENCE APPEAL – Asserted miscarriage of justice arising from the failure on the part of the applicant's legal representatives to tender a medical report on sentence – No miscarriage of justice established – Asserted errors on the part of the trial judge in assessment of the objective seriousness of the offending – Whether the accused's treatment of the body of the deceased was an aggravating factor – Concessions properly made by counsel who appeared on sentence – Not open to the applicant to re-agitate the subject matter of those concessions – No error established Legislation Cited: Evidence Act 1995 (NSW) – ss 97, 101 Crimes (Sentencing Procedure) Act 1999 (NSW) - ss 21A, 28 Cases Cited: Bayram v R [2012] VSCA 6 Betts v R [2015] NSWCCA 39 Keane v R [2011] VSCA 156 M v R [1994] HCA 63; 181 CLR 487 Mulato v R [2006] NSWCCA 282 Panetta v R [2016] NSWCCA 85 Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 Pym v R [2014] NSWCCA 182 R v Do (No 4) [2015] NSWSC 512 R v Halloun [2014] NSWSC 1705 R v Pluis [2015] NSWSC 320 R v Sumpton [2014] NSWSC 1432 R v Sumpton (No 4) [2015] NSWSC 684 Romero v R [2011] VSCA 45 Shepherd v R [1990] HCA 56; 170 CLR 573 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Andrew Mervyn Sumpton – Applicant Regina – Respondent Crown Representation: Counsel: P Segal – Applicant M Cinque SC – Respondent Crown