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McEwan v The Queen

McEwan v The Queen

Case [2013] VSCA 329 20 December 2013

Murder

Joint Criminal Enterprise

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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…

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.

Continue reading McEwan v The Queen

Details

AGLC: McEwan v The Queen [2013] VSCA 329
Case: [2013] VSCA 329
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case of McEwan v The Queen involved three applicants who were convicted of murder, defensive homicide, and manslaughter respectively in relation to a single incident. The applicants sought to challenge their convictions and sentences. The appeal against conviction was allowed, but the appeal against sentence was dismissed. The High Court of Australia heard the appeal and provided its judgment.

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