Joel Parker Henderson v The Queen - [2016] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0242

JOEL PARKER HENDERSON	Applicant
v
THE QUEEN	Respondent

---

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)

---

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.

---

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…

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.

Keep reading for free

Create a free CaseChat account to read Joel Parker Henderson v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 61
Decision Date: 6 April 2016

CaseChat Overview and Summary

Joel Parker Henderson appealed his conviction for murder, arguing that the trial judge erred in directing the jury regarding his participation in a joint criminal enterprise. The case was heard by the High Court of Australia. Henderson was convicted of being an accessory to the murder of a person during the course of a joint criminal enterprise. He contended that the trial judge provided an incorrect direction to the jury about the requirements for his participation in the crime.

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