Hutt, Jeffrey, Hutt and Bell v The Queen - [1989] TASSC 27

Serial No 21/1989
List “A”

CITATION: Hutt, Jeffrey, Hutt and Bell v R [1989] TASSC 27; A21/1989

PARTIES:  HUTT, Gregory Terrence
  JEFFREY, Dean John
  HUTT, Craig Jeffrey
  BELL, Wayne John
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 106/1988

CCA 108/1988
CCA 109/1988
CCA 110/1988

DELIVERED ON:  1 June 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Cox, Underwood and Crawford JJ

Judgment Number: A21/1989
Number of paragraphs: 71

Serial No 21/1989
List "A"
File Nos CCA 106/1989
CCA 108/1989
CCA 109/1989
CCA 110/1989

GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
UNDERWOOD J
CRAWFORD J
1 June 1989

Orders of the Court (in each appeal)

Appeal allowed.
Conviction quashed.
New trial on the indictment.

Serial No 21/1989
List "A"
File Nos CCA 106/1989
CCA 108/1989
CCA 109/1989
CCA 110/1989

GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX J
1 June 1989

I agree with the reasons for judgment prepared by Underwood J which I have had the advantage of reading. I agree with the orders he proposes in each appeal.
File Nos CCA 106/1989
CCA 108/1989
CCA 109/1989
CCA 110/1989

GREGORY TERRENCE HUTT v R
DEAN JOHN JEFFREY v R
CRAIG JEFFREY HUTT v R
WAYNE JOHN BELL v R

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
1 June 1989

In the early evening of the 17 January 1988 Michael Leslie McClymont was in the backyard of his home at Rokeby. There, he was attacked by a number of men, one of whom struck him twice on the head with a blunt instrument. A few days later he died from injuries caused by these blows. The appellants were jointly indicted and tried for the murder of the deceased. On the 6 September 1988 all four appellants were found guilty of murder and sentenced to life imprisonment. Each has lodged an appeal against conviction.

At the trial it was not disputed that one of the appellants struck the fatal blows with a pair of barrels from a shotgun, frequently referred to during the trial as the iron bars. The Crown put its case against each accused on several bases namely:

(1)As the principal or
(2)As an accessory within the meaning of the Code, s3(1)(b) and/or (c) or
(3)That each had formed a common intention with one or more of the co–accused to prosecute an unlawful purpose, that the crime of murder was committed in the prosecution of that purpose and was a probable consequence of the prosecution of that purpose.

First, it is necessary to set out some background which has a bearing on the relevant events.

Ill feeling had arisen between the appellant Craig Hutt and one Craig Rowbottom. The Crown led evidence that on the evening of the 13 January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] TASSC 27
Decision Date: 1 June 1989

CaseChat Overview and Summary

The Court of Criminal Appeal of Tasmania heard the appeals of four individuals, Gregory Terrence Hutt, Dean John Jeffrey, Craig Jeffrey Hutt, and Wayne John Bell, who were convicted of the murder of Michael Leslie McClymont. The Court was required to decide several legal issues, including the admissibility of evidence pertaining to events that occurred after the fatal assault, the correctness of the trial judge's directions to the jury regarding the prosecution of a common unlawful purpose, and the sufficiency of the evidence to support the convictions. The Court found that the evidence of events that occurred after the fatal assault was inadmissible as it lacked the requisite high probative force and was prejudicial, tending to show a propensity for violence. The Court also held that the trial judge erred in leaving to the jury the issue of whether the assault on the deceased was an act done in the prosecution of a common unlawful purpose, as there was no admissible evidence to support such a conclusion. Furthermore, the Court determined that the trial judge misdirected the jury on the issue of accessorial liability, as it was necessary to prove that the conduct of the accused actually encouraged the principal offender to commit the crime. The Court concluded that the convictions should be quashed and new trials ordered on the indictment of murder, as the admissible evidence was not sufficiently cogent to justify a conviction for murder.

Orders