TWL v R

Judgment 1MACFARLAN JA: After a trial in the District Court before Coolahan DCJ and a jury, the jury found the appellant guilty of a charge, to which he had pleaded not guilty, that he "did unlawfully kill Jamie Purdon" on or about 20 February 2009 at Maitland in New South Wales. The appellant was 15 years and 5 months old at the time of the offence leading to this manslaughter conviction. 2On 20 April 2011 Coolahan DCJ sentenced the appellant to imprisonment with a non-parole period of 2 years 6 months commencing 20 April 2011 to expire on 19 October 2013 and an additional term of 2 years 6 months to expire on 19 April 2016. His Honour ordered that the appellant serve his sentence as a juvenile pursuant to s 19 of the Children (Criminal Proceedings) Act 1987. 3The charge against the appellant related to the death of Mr Jamie Purdon, a young man of about 20 years of age. Mr Purdon hit his head on a hard surface after being felled by a punch to the head delivered by one AC who was then 17 years of age. The incident occurred on a Friday evening when those involved were attending the Maitland Show. Put shortly, the Crown case against the appellant was that he, AC and one AB were parties to a joint criminal enterprise to physically assault Mr Purdon, pursuant to which AC delivered the fatal blow. The Crown's case at the trial was heavily dependent on the evidence that the Crown called from AC. 4At the hearing of the appellant's appeal against his conviction this Court concluded that deficiencies in connection with the trial had resulted in a miscarriage of justice. In consequence the Court quashed the appellant's conviction. It otherwise reserved its decision. The following are my reasons for supporting the order quashing the conviction and concluding that the Court should order a retrial of the appellant. 5The deficiencies to which I have referred were two. First, (Ground of Appeal 2), the trial judge did not direct the jury that to convict the appellant it was necessary that it be satisfied beyond reasonable doubt that the joint criminal enterprise for which the Crown contended involved an agreement or understanding that an act would be committed that was not only unlawful but was dangerous in the sense that it carried "an appreciable risk of serious injury" to Mr Purdon (Wilson v The Queen [1992] HCA 31; 174 CLR 313 at 333). Complaint about the absence of such a direction was not made at the trial but, for reasons that I give later, leave to raise the point on appeal should be granted pursuant to r 4 of the Criminal Appeal Rules. 6The second deficiency (Grounds of Appeal 7(b) - 9) was that the Crown, as it accepted, inadvertently breached the pre-trial disclosure requirements of ss 137 and 138 of the Criminal Procedure Act 1986. The Crown failed to provide the appellant or his representatives with copies of reports attributing to AC descriptions of the relevant incident that arguably conflicted to some extent with the evidence that AC gave at the trial. Possession of the reports would have been of considerable assistance to counsel for the appellant in cross-examining AC, upon whose credit the Crown's case largely depended. 7I shall now summarise the evidence at the trial but only insofar as it bears upon the issues that this Court needs to determine.