SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MILOSEVIC v THE QUEEN
[2022] SASCA 38
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
27 April 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - RECKLESSNESS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY
Following a trial by jury, the appellant was convicted of the murder of his housemate.
At trial, the prosecution alleged that the appellant had committed five acts of violence against the deceased over a period of three to four hours, including, inter alia, dropping a wheelie bin on his head twice (“fourth act of violence”). The appellant gave evidence at trial; he admitted the first three acts of violence but denied his involvement in the final two.
It was the prosecution case at trial that the appellant, in the course of committing the five acts of violence alleged, intended to kill or at least inflict grievous bodily harm upon the deceased. At the request of the prosecution, the Trial Judge directed the jury on the elements of reckless murder and left reckless murder to the jury as an alternative pathway to guilt for murder.
The appellant appeals his conviction on three grounds: first, that the Trial Judge erred in leaving reckless murder to the jury; second, that the Trial Judge failed to relate the directions on recklessness to the evidence at trial; and third, that the Trial Judge misdirected the jury by ascribing undue prominence to the use of the wheelie bin by the appellant in the fourth act of violence.
Held, by the Court, granting permission to appeal on Ground 2, but dismissing the appeal:
1.The Trial Judge did not err in leaving reckless murder to the jury. Further, the Trial Judge’s directions on the difference between murder and manslaughter by an unlawful and dangerous act were appropriate.
2.The Trial Judge appropriately directed the jury on the evidence at trial relating to reckless murder.
3.The Trial Judge did not misdirect the jury by ascribing undue prominence to the “wheelie bin” incident.
Aubrey v The Queen (2017) 260 CLR 305; JGS v The Queen [2020] SASCFC 48; La Fontaine v The Queen (1976) 136 CLR 62; Nudd v The Queen (2006) 80 ALJR 614; Pemble v The Queen (1971) 124 CLR 107; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Barrett (2007) 16 VR 240; R v Cooke (1985) 39 SASR 225; R v Crabbe (1985) 156 CLR 464; R v Sergi [1974] VR 1; R v TY (2006) 12 VR 557, considered.
MILOSEVIC v THE QUEEN
[2022] SASCA 38
Court of Appeal – Criminal: Lovell, Livesey and Bleby JJA
THE COURT:
On his arraignment before a jury on the charge of murdering…
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- Milosevic v The Queen [2022] SASCA 38
- Case
- [2022] SASCA 38
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the trial judge erred in leaving the charge of reckless murder to the jury, whether the directions given to the jury regarding the distinction between murder and manslaughter by an unlawful and dangerous act were appropriate, and whether the trial judge unduly emphasised the "wheelie bin" incident in the directions to the jury.
The Court of Appeal held that the trial judge did not err in leaving reckless murder to the jury, nor in the directions provided on the difference between murder and manslaughter by an unlawful and dangerous act. The court found that the directions given regarding the evidence relevant to reckless murder were also appropriate. Furthermore, the court determined that the trial judge did not misdirect the jury by giving undue prominence to the "wheelie bin" incident. Consequently, the appeal was dismissed.
Orders
Orders of the court
Held, by the Court, granting permission to appeal on Ground 2, but dismissing the appeal:
1. The Trial Judge did not err in leaving reckless murder to the jury. Further, the Trial Judge’s directions on the difference between murder and manslaughter by an unlawful and dangerous act were appropriate.
2. The Trial Judge appropriately directed the jury on the evidence at trial relating to reckless murder.
3. The Trial Judge did not misdirect the jury by ascribing undue prominence to the “wheelie bin” incident.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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