Hillier v The Queen

[2005] ACTCA 48

STEVEN WAYNE HILLIER v THE QUEEN [2005] ACTCA 48 (15 December 2005)

CRIMINAL LAW – appeal against conviction for murder – Crown case dependent on circumstantial evidence - unsafe and unsatisfactory ground.

M v R (1994) 181 CLR 487
Jones v R (1997) 191 CLR 439
Gipp v R (1998) 194 CLR 106
Shepherd v The Queen (1990) 170 CLR 573
Mickleberg v The Queen (1988-1989) 167 CLR 251
BRS v The Queen (1997) 191 CLR 275
Ratten v The Queen (1974) 131 CLR 516

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 42 - 2004
No. SCC 37 of 2004

Judges:        Higgins CJ, Crispin P and Spender J
Court of Appeal of the Australian Capital Territory
Date:           15 December 2005

IN THE SUPREME COURT OF THE     )          No. 42 - 2004
  )          No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN WAYNE HILLIER

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Spender J.
Date:  15 December 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed; and

1. the conviction and sentence be set aside.

IN THE SUPREME COURT OF THE     )          No. ACTCA 42 - 2004
  )          No. SCC 37 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE AND JURY OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEVEN WAYNE HILLIER

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Crispin P and Spender J.
Date:  15 December 2005
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ and CRISPIN P:

1. This is an appeal against the appellant’s conviction for the murder of Ana Louise Hardwick (“the deceased”) between 30 September 2002 and 2 October 2002.

1. Whilst the notice of appeal contained grounds raising several issues as to perceived inadequacies in the trial judge’s summing up of the case to the jury, the ground most strongly pressed upon the hearing of the appeal was that the verdict of the jury was unsafe and unsatisfactory.

1. Any earlier uncertainty about the circumstances in which an appellate court should set aside a jury’s verdict on the ground of its own misgivings as to whether the evidence had been sufficient to exclude any reasonable doubt as to the guilt of an appellant was effectively resolved by the High Court of Australia in M v R (1994) 181 CLR 487. In that case Mason CJ, Deane, Dawson and Toohey JJ explained at 494-5:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the…