Matthews v The Queen

Case [2014] NSWCCA 151

Court of Criminal Appeal

New South Wales
Case Title: Matthews v R
Medium Neutral Citation: [2014] NSWCCA 151
Hearing Date(s): 26/06/2014
Decision Date: 08 August 2014
Before: Hoeben CJ at CL at [1]
Rothman J at [102]
Beech-Jones J at [110]
Decision:

Leave to appeal is granted.
Appeal allowed and applicant's conviction for the offence of murder is quashed.
A verdict of acquittal be entered in favour of applicant on the charge of murder.
There should be a new trial on the charge of manslaughter.
Catchwords: CRIMINAL LAW - conviction appeal - whether verdict of jury unreasonable and cannot be supported by evidence - charge of murder - two men involved in a street fight - conflicting evidence as to what happened - evidence of principal Crown witness unreliable in a number of significant respects - not open to jury to conclude beyond reasonable doubt that applicant had intent necessary for murder - murder conviction should be quashed - new trial on the charge of manslaughter.
Legislation Cited: Evidence Act 1995
Cases Cited: Griffiths v R [2014] NSWCCA 60
M v The Queen [1994] HCA 63; 181 CLR 487
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Rasic [2009] NSWCCA 202
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Adam James Matthews - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr J Stratton SC - Applicant
Mr P Ingram SC - Respondent Crown
- Solicitors: Solicitors:
Watsons Solicitors - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2011/60340
Decision Under Appeal
- Before: Mathews J
- Date of Decision:  16 April 2013
- Citation: Regina v Matthews [2013] NSWSC 659
- Court File Number(s): 2011/60340

JUDGMENT

  1. HOEBEN CJ at CL:

    Background
    On 2 April 2013 the applicant was indicted for the murder of Scott Miller before Acting Justice Mathews. He entered a plea of not guilty. Thereafter, the trial proceeded until 11 April 2013 when the jury retired to consider its verdict. On 16 April 2013 the jury returned a verdict of guilty of murder. On 27 May 2013 Mathews AJ sentenced the applicant to imprisonment with a non-parole period of 11 years and a balance of term of 5 years (Regina v Matthews [2013] NSWSC 659).

  2. The applicant appeals against conviction only. The sole ground of the appeal is that "the verdict of the jury that the applicant was guilty of murder is unreasonable and cannot be supported by the evidence". This ground of appeal raises issues of fact and as a result, the appeal requires the leave of the Court. Because there are real factual issues to be considered by the Court, I would grant that leave.

  3. The indictment asserted that on 22 February 2011 at Darlinghurst in the State of New South Wales, the applicant did murder Scott Miller. The Crown case was that early in the evening of Saturday 19 February 2011 a fight took…

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AGLC
Matthews v The Queen [2014] NSWCCA 151
Case
[2014] NSWCCA 151
Decision Date

CaseChat Overview and Summary

In the case of Matthews v The Queen, the applicant appealed against his conviction for murder. The dispute arose from a violent confrontation between the applicant and the deceased that culminated in the deceased's death. The central issue in the appeal was whether the jury's verdict of guilty was unreasonable and could not be supported by the evidence, particularly regarding the applicant's intent to kill or cause grievous bodily harm. The High Court of Australia was tasked with reviewing the evidence and determining if it was open to the jury to be satisfied beyond reasonable doubt that the applicant intended to kill or inflict really serious injury on the deceased.

The key legal issue was the sufficiency and quality of the evidence concerning the applicant's intent. The Crown relied on several pieces of evidence to establish the applicant's intent, including his alleged statements and actions during the altercation. However, the applicant argued that the evidence was unreliable and insufficient to support a finding of intent to kill or cause grievous bodily harm. The Court had to assess whether the evidence, particularly that of the principal witness, Mr Whiting, was reliable and sufficient to support a conviction for murder. The Crown submitted that even if some aspects of Mr Whiting's testimony were discounted, other evidence could still support a murder conviction.

The Court found that the evidence of Mr Whiting was unreliable in significant respects, particularly given the lack of support from CCTV footage. The Court concluded that the evidence was not sufficient to establish beyond reasonable doubt that the applicant had the requisite intent for murder. The Court held that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant intended to kill or cause grievous bodily harm to the deceased. Consequently, the murder conviction was quashed, and the case was to be retried on the charge of manslaughter.

The final order was that the applicant's conviction for murder be quashed, and the case be remitted for a new trial on the charge of manslaughter. This decision underscores the importance of reliable and sufficient evidence in criminal trials, particularly in cases where the intent to kill or cause grievous bodily harm is a critical element of the charge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

All of those issues were not argued in the appeal. Their existence, however, is relevant to the ultimate disposition of the appeal. As indicated, the appeal focused on the evidence as to intention and as to whether the evidence was capable of establishing that the applicant had an intention to kill or inflict grievous bodily harm. The issue was whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant intended to either kill or inflict really serious injury on the deceased. It was the applicant's submission that the jury should have had a reasonable doubt and so should this Court.The evidence as to intention At trial, three pieces of evidence were relied upon as evidence that the applicant had the requisite intention:(i) That the applicant punched the deceased from behind.(ii) That the applicant said "I will kill you" during the course of his attack on the deceased.(iii) That the applicant stomped on the head of the deceased approximately six times from a height of approximately two feet.This evidence came from Mr Whiting. In the appeal, the Crown relied upon the same evidence but submitted that even if the evidence of Mr Whiting that there were six stomps to the head of the deceased ought to be substantially discounted, it was still open to the jury to find the applicant guilty of murder because other evidence established beyond reasonable doubt that he had the requisite intent:(a) The evidence of other witnesses concerning stomps/kicks.(b) The concession by the applicant that he had stomped once on the upper chest/arm of the deceased to prevent him getting back to his feet.(c) The evidence that prior to the first fight, the applicant had told Mr Bell that he did not like the deceased.(d) The evidence that the applicant initiated the first fight with the deceased.(e) The evidence that the applicant got back to his feet and pursued the deceased.(f) The evidence that adjacent to the T2 building, the applicant initiated the second fight by punching the deceased from behind.(g) The evidence that in the course of the altercation adjacent to the T2 building, the applicant, who maintained a fighting position as the deceased backed away from him, put his hands down by his side and turned away from the applicant and towards Oxford Street.(h) The evidence that Messrs Doughty and Fanning had to restrain and remove the applicant as the deceased lay upon the ground.Mr Anthony Whiting He had been friends with the deceased for about 8 years. On Saturday, 19 February he was walking through Taylor Square when he saw the deceased near the old T2 building. He then observed the applicant, who was slightly behind the deceased, to punch the deceased several times in the side or back of the head with a closed fist. The deceased then struck the applicant with his right fist and knocked him to the ground. The deceased then walked away. The applicant lay on the ground near T2 for about 10 - 15 seconds. The applicant got to his feet and threw three or four punches to the side and back of the deceased's head. The deceased fell to the ground and as he lay there, the applicant stomped on his head. He raised his foot and stomped down from a height of approximately two feet. The applicant did not stomp on any other part of the deceased, just the head. He estimated that the applicant stomped on the deceased's head six times.

Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

Not surprisingly, given the location of the events leading up to the deceased's death, there was CCTV footage available which showed the applicant and the deceased at various times, both before and during their confrontation. It was collected and collated by one of the investigating police officers so as to show events as they occurred chronologically. There is nothing in that CCTV footage which supports the evidence of Mr Whiting. In fact, given the detail and precision of Mr Whiting's evidence, it is somewhat surprising that he is not depicted in any of the CCTV footage. At one point in time the CCTV footage showed the deceased and the applicant apparently shaping up, facing each other and perhaps exchanging punches. It showed Jayson Bell walking with the applicant. It also showed the deceased before the confrontation walking in the vicinity of the two hotels. Mr and Mrs Eyers are shown, as is Mr Farmer and Ms Austin. A man identified as "Lee" in the evidence of Mr Fanning is also shown. What seems to be clear from the CCTV footage is that the confrontation did not occur immediately after the applicant and the deceased left the Courthouse Hotel but some minutes later. Otherwise that CCTV footage does not take the evidence further.Consideration The task of this Court was restated by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]:"The task of the Court of Criminal Appeal11 It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".12 This test has been restated to reflect the terms of s6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."13 The starting point in the application of s6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred."...14 In determining an appeal pursuant to s6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'."