SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0229 | |
| STEPHEN McEWAN | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2012 0244 | |
| JAMES ROBB | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2012 0283 | |
| NORMUNDS DAMBITIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, COGHLAN JJA and DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11–12 September 2013 |
| DATE OF JUDGMENT | 20 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 329 |
| JUDGMENT APPEALED FROM | [2012] VSC 417 (Kaye J) |
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CRIMINAL LAW – Murder – Conviction – Joint criminal enterprise – Three applicants convicted of murder, defensive homicide and manslaughter respectively – Whether verdicts inconsistent – Whether verdicts unsafe and unsatisfactory – Whether trial judge erred in failing to direct the jury that if one applicant to the agreement was acting in self-defence, another applicant could not be convicted of murder – Whether the applicant convicted of defensive homicide could have been party to the acts causing death – Open to the jury to find the applicants guilty of three different offences because of a different intent or a defence special to themselves – Verdicts explained by each applicant’s involvement in the offence – No withdrawal – Osland v The Queen (1998) 197 CLR 316; White v Ridley (1978) 140 CLR 342 applied – Leave granted – Appeal dismissed.
CRIMINAL LAW – Sentence – Defensive homicide – Whether manifestly excessive in light of applicant’s courageous conduct and personal circumstances – Whether trial judge erred in finding that applicant convicted of manslaughter had physically participated in the assault – Creamer v The Queen (2012) 221 A Crim R 284 – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant McEwan | Mr D Grace QC with Mr Z Zayler | Melasecca Kelly Zayler |
| For the Applicant Robb | Mr L C Carter | C D Traill Lawyers |
| For the Applicant Dambitis | Mr D A Dann | Turnbull Lawyers |
| For the Crown | Mr P B Kidd SC with Mr P Doyle | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
COGHLAN JA
DIXON AJA:
The applicants, Stephen McEwan, Normunds Dambitis and James Robb all pleaded not guilty in the Supreme Court to the charge of murdering Scott Shaw. After a 41 day trial, the jury found McEwan guilty of murder, Dambitis not guilty of murder but guilty of defensive homicide, and Robb not guilty of murder but guilty of manslaughter.
McEwan was sentenced on the charge of murder to 16 years and six months’ imprisonment, with a non-parole period of 12 years and six months. Dambitis, on the alternative charge of defensive homicide, was sentenced to 11 years’ imprisonment with a non-parole period of eight years’ imprisonment. Robb, on the charge of manslaughter, was sentenced to eight years’ imprisonment with a non-parole period of five years and six months.
Each of the applicants seeks leave to appeal against their conviction. For the reasons that follow we would grant leave on a number of grounds but would dismiss each appeal against conviction. That the jury returned different…
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- AGLC
- McEwan v The Queen [2013] VSCA 329
- Case
- [2013] VSCA 329
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the verdicts of the applicants were inconsistent, unsafe and unsatisfactory, and if the trial judge erred in not directing the jury that if one applicant was acting in self-defence, another could not be convicted of murder. Another issue was whether the applicant convicted of defensive homicide could have been a party to the acts causing death. The court also considered if it was open to the jury to find the applicants guilty of three different offences due to different intents or special defences available to them. Additionally, the court assessed whether the sentence for defensive homicide was manifestly excessive in light of the applicant's courageous conduct and personal circumstances and if the trial judge erred in finding that the applicant convicted of manslaughter had physically participated in the assault.
The court found that the verdicts were not inconsistent, unsafe or unsatisfactory, and that there was no error in the trial judge's directions to the jury. The court held that it was open to the jury to find the applicants guilty of different offences based on their individual involvement in the offence. The court also held that the sentence for defensive homicide was not manifestly excessive, and there was no error in the trial judge's finding that the applicant convicted of manslaughter had physically participated in the assault. The appeal against conviction was allowed, but the appeal against sentence was dismissed.
The final orders of the court were that the appeal against conviction was allowed, and the applicants' convictions were quashed. The applicants were re-sentenced by the Supreme Court of Victoria. The appeal against sentence was dismissed, and the original sentences were upheld. The case highlights the importance of considering the individual involvement of each applicant in a criminal offence and the need for careful consideration of the directions given to the jury by the trial judge.
Orders
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Background
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Decision
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