SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0242
| JOEL PARKER HENDERSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG AP, PRIEST and BEACH JJA |
| WHERE HELD: | BALLARAT |
| DATE OF HEARING: | 5 April 2016 |
| DATE OF JUDGMENT: | 6 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 61 |
| JUDGMENT APPEALED FROM: | The Queen v Henderson [2015] VSC 653 (Bongiorno JA) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Joint criminal enterprise – Participation – Whether trial judge misdirected the jury on participation and presence – Whether verdict is unsafe and unsatisfactory – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr D Trapnell QC and Ms K Argiropoulos | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG AP:
I agree with Priest JA.
PRIEST JA:
Introduction
Timothy O’Brien — referred to throughout the applicant’s trial for murder as ‘Timmy’ — was aged 14 years when he died as a result of being struck multiple times to the head with an axe wielded by Darren Wilson (‘Wilson’). Joel Henderson, the applicant, was present when Wilson struck the deceased with the axe, and had himself earlier assaulted the deceased with it. The prosecution’s case for murder against the applicant was one of joint criminal enterprise.
A jury found the applicant guilty of the murder of Timothy O’Brien on 7 August 2015. He seeks leave to appeal against that conviction on two grounds:
1.The verdict is unreasonable or unable to be supported having regard to the evidence. In particular —
(a)it was not open to the jury to infer that an agreement was formed between the applicant and Wilson in the front yard to kill or cause really serious injury to the deceased;
(b)alternatively, it was not open to the jury to conclude that the applicant participated in the alleged joint criminal enterprise.
2.The learned trial judge erred in directing the jury that the applicant could have participated in the alleged joint criminal enterprise by his:
(a)presence; and/or
(b)failure to intervene to stop Darren Wilson’s attack on the deceased; and/or
(c)supply of the murder weapon.
In my view, neither ground has substance. Leave to appeal against conviction must be refused.
Overview
Timothy O’Brien was an autistic boy, who, as I have mentioned, was aged 14
years when he was killed. Wilson was aged 35 years. The applicant was aged 39 years.
At the time that he died, Timothy O’Brien lived with his mother, Deborah O’Brien, and his stepfather, Peter Williams (‘Williams’), in Smythesdale (which is not far from Scarsdale). Williams and Wilson are cousins. They were not on friendly terms.
The killing took place on Saturday, 5 January, 2013, in the front yard of a house in Scarsdale, occupied by Rachel Curtis (‘Curtis’), Jess Conry-Rasmini (‘Conry-Rasmini‘) and her boyfriend, Dylan Hamilton (‘Hamilton’). Curtis knew Williams because he did ‘odd jobs’ at the house.
In the early hours of that day, the applicant, Wilson and Lisa Trezise (‘Trezise’) — who was…
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- Case
- [2016] VSCA 61
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the trial judge's direction to the jury concerning the nature of Henderson's participation in the joint criminal enterprise was erroneous. Specifically, Henderson argued that the trial judge misdirected the jury by implying that mere presence at the scene of the crime was sufficient to establish his participation. Henderson further contended that if the trial judge's direction was incorrect, then the verdict should be deemed unsafe and unsatisfactory. The Court considered whether the jury might have been misled by the trial judge's direction and whether such an error was substantial enough to affect the safety of the verdict.
The High Court held that the trial judge's direction to the jury was not misdirection and that the jury was properly guided in its deliberations. The Court found that the trial judge clearly outlined the requirements for establishing Henderson's participation in the joint criminal enterprise and that the jury was not misled. Consequently, the Court concluded that the verdict was safe and satisfactory. The appeal was dismissed, and leave to appeal was refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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