Howell v The Queen

[2022] SASCA 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HOWELL v THE QUEEN

[2022] SASCA 84

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

1 September 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY

The appellant is alleged to have entered into an agreement to steal a large amount of cannabis from a grow house (the joint criminal enterprise).  In furtherance of the joint criminal enterprise, one or more of the members of the enterprise inflicted one or more blows to the head of the person guarding the grow house resulting in his death.  The appellant was tried separately to the four defendants who were members of the enterprise and found guilty by a jury of murder.

By Notice of Appeal filed 31 May 2021, the appellant sought to appeal against his conviction raising various contentions regarding the elements and requisite approach to statutory, or constructive, murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 (SA). The Director of Public Prosecutions subsequently conceded the appeal.

The High Court has since granted the separately tried defendants special leave to appeal against their convictions. 

Held (the Court) allowing the appeal:

1.  The conviction is quashed.

2.  The matter is remitted for retrial before a different Judge of the Supreme Court.

Criminal Law Consolidation Act 1935 (SA) s 12A, referred to.
Rigney v The Queen (2021) 290 A Crim R 384; Rigney v The Queen [2022] HCATrans 112, considered.

HOWELL v THE QUEEN
[2022] SASCA 84

Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT:

1. The appellant is alleged to have entered into an agreement to steal a large amount of cannabis from a grow house (the joint criminal enterprise).  In furtherance of the joint criminal enterprise, one or more of the members of the enterprise inflicted one or more blows to the head of the person guarding the grow house resulting in his death.  The appellant was tried separately to four defendants who were also members of the joint criminal enterprise and found guilty by a jury of murder.  The appeal by those four defendants was dismissed by the Court of Appeal in the case of Rigney v The Queen.[1]

   [1]     Rigney v The Queen (2021) 290 A Crim R 384.

2. One of the appeal grounds in this case of statutory, or constructive, murder is that the trial judge erred in law by directing the jury in terms that did not include the requirement that there be a finding beyond reasonable doubt that the parties to the extended joint enterprise contemplated that one or more of them might commit an intentional act of violence. That is to say, s 12A of the Criminal Law Consolidation Act 1935 (SA) requires proof that an intentional act of violence was contemplated.

3. The Director of Public Prosecutions conceded this appeal on the basis that the omission of that requirement comprised an error of law and it cannot be said that there has been no substantial miscarriage of justice.  In making this concession, the Director relied upon the decision in Rigney v The Queen, where a direction which included this requirement was upheld as “sufficient and correct”.[2]

   [2]     Rigney v The Queen (2021) 290 A Crim R 384, [157]-[160] (Peek AJA with whom Kelly P agreed), [11]-[13] (Doyle JA).

4. This Court allowed the appeal on the basis of that concession, set aside the conviction and ordered that there be a new trial. 

5. Since this appeal was allowed, the High Court has granted special leave to appeal in Rigney and the related appeals and, in these circumstances, it is inappropriate to anticipate the requisite approach to statutory, or constructive, murder ahead of a decision from the High Court.[3]

   [3]     Rigney v the Queen [2022] HCATrans 112.