Criminal Law—Murder—Alternative verdict of manslaughter—Duty of judge to direct jury that verdict of manslaughter open if basis exists on the evidence—Common unlawful purpose not involving intention to kill or cause grievous bodily harm—Departure from common purpose—Change of intention by actor alone—Scope of common intention. Evidence—Criminal trial—Admissibility—Previous misconduct of accused—Similar facts—Accused charged with murder committed in course of cheating victim as he attempted to buy drugs—Evidence that accused had been victims in similar case and perpetrators in another not admissible.
Decisions
July 25. The following written judgments were delivered: - GIBBS A.C.J. The applicant, Simon John Markby, and one Stephen Shane Holden were tried together in the Supreme Court of New South Wales on a charge of murdering one Ottmar Syrch. Each accused was convicted of murder. An appeal by the applicant to the Court of Criminal Appeal was dismissed. Application is now made for special leave to appeal to this Court. (at p110)
2. The evidence showed that the two accused men met Syrch by arrangement near Centennial Park in the early morning of 23rd November 1975. At the suggestion of Holden, the applicant carried in a travel bag a dismantled rifle with a loaded magazine. According to the applicant the purpose of the meeting was to do a deal with Syrch, who hoped to buy from Holden a quantity of marijuana for $3,000. The Crown case was that the accused men intended to rob Syrch of the $3,000 and kill him. Syrch had driven to the meeting place in a panel van, and the two accused men left him there for a short time under the pretence of getting the drugs, but in fact to assemble the rifle. They returned to the panel van, Holden now carrying the rifle. The applicant began to speak to Syrch when the rifle which was held by Holden was discharged and Syrch was shot in the head at close range. The wound caused by the shot was capable of causing death, but it was a question for the jury whether it did so, and if so how long it took for Syrch to die. The accused men then drove to Matraville, taking Syrch with them. On the way four more shots were fired into Syrch's head. The applicant gave evidence at the trial, in the course of which he said that he drove the car, and that Holden fired the shots. Holden, on the other hand, in an unsworn statement, denied that he fired any of the shots except the first, which he said was accidental. The accused men left the body of Syrch at Matraville, after taking the $3,000 which they later divided between themselves. (at p110)
3. There was ample evidence on which the applicant could have been convicted of murder and the contrary was not suggested before us. Two matters must however be noticed. The…
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
AGLC
Markby v The Queen [1978] HCA 29
Case
[1978] HCA 29
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Markby against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant and the proper application of the law relating to self-defence.
The Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant under circumstances that the defence argued amounted to an unlawful arrest and an improper inducement to confess. Furthermore, the Court had to consider whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles.
The majority of the Court held that the arrest was lawful, and therefore the evidence obtained was admissible. They reasoned that the police had reasonable grounds to suspect the appellant had committed a serious offence. On the issue of self-defence, the Court affirmed that the onus remained on the prosecution to disprove self-defence once evidence raising it had been adduced. The jury directions were found to be sufficient, as they adequately conveyed the elements of self-defence to the jury, including the requirement for an honest and reasonable belief in the need for force.
The appeal was dismissed, and the conviction upheld.