R v Childs

Case [2007] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CHILDS

[2007] SASC 195

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kelly)

30 May 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL

Full Court agrees to consider application for permission to appeal - permission to appeal previously refused by single Judge of the Supreme Court - hearing of application treated as hearing of appeal - appellant granted permission to amend Notice of Appeal and granted an extension of time - Notice of Appeal raised two substantive grounds.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - JOINT TRIAL OF SEVERAL PERSONS

First substantive ground of appeal - whether trial Judge erred in law by directing jury to convict the co-accused upon her plea of guilty - trial Judge's direction exceeded scope of Judge's entitlement to direct jury that, as a matter of law, they should return a verdict of guilty - error of trial Judge did not result in miscarriage of justice - trial Judge's direction as to guilt of the co-accused had no effect on regularity or fairness of appellant's trial.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL ALLOWED

Second substantive ground of appeal - whether trial Judge erred in law in directing jury on significance of evidence that the appellant was intoxicated - discussion of significance of common law principles relating to intoxication - effect of s 268 of the Criminal Law Consolidation Act 1935 (SA) on common law principles - trial Judge's failure to direct jury in terms of manslaughter by dangerous act did not give rise to a miscarriage of justice - trial Judge's direction on effects of intoxciation on formation of basic or specific intent to commit murder contained a significant error - error gives rise to the possibility of a miscarriage of justice.

Held:  Permission to appeal granted - time for filing Notice of Appeal extended - appeal allowed - conviction set aside - re-trial ordered.

Supreme Court Criminal Appeal Rules 1996 (SA) r 15(4); Customs Act 1901-1975 (Cth); Criminal Law Consolidation Act 1935 (SA) s 23, s 267A, s 267A(1), s 268, s 268(3), s 269(1); Acts Interpretation Act 1915 (SA) s 19(1)(c), referred to.
R v Brooks & Childs (2006) 95 SASR 369; R v Brooks [2007] SASC 35; Yager v The Queen (1997) 139 CLR 28; Jackson v The Queen (1976) 134 CLR 42; R v Douglass (2004) 9 VR 355; Director of Public Prosecutions v Stonehouse [1978] AC 55; Gent (1989) 89 Cr App R 247; R v Wang [2005] 1 WLR 661;

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AGLC
R v Childs [2007] SASC 195
Case
[2007] SASC 195
Decision Date

CaseChat Overview and Summary

In the matter of R v Childs, the Full Court of the Supreme Court of South Australia reviewed an appeal against conviction and sentence. The appellant, Mr Childs, was convicted of murder and arson for his involvement in the death of Mr Anderson, who was set alight in a car park in Adelaide. The appeal raised two substantive grounds: the first concerned a potential error in the trial judge's direction to the jury regarding the co-accused's plea of guilty, and the second related to the trial judge's direction on the significance of evidence that the appellant was intoxicated at the time of the offence.

The court found that while the trial judge's direction regarding the co-accused's plea of guilty was legally impermissible, it did not result in a miscarriage of justice. The error did not affect the regularity or fairness of the appellant's trial. However, the court determined that the second ground of appeal had merit. The trial judge's direction on the effects of intoxication on the formation of intent to commit murder contained a significant error, which raised the possibility of a miscarriage of justice. This error was considered substantial enough to warrant the setting aside of the conviction and ordering a retrial.

In light of the error identified in the direction on intoxication, the Full Court granted permission to appeal, which had been previously refused by a single judge. The court extended the time for filing the Notice of Appeal and allowed the appellant to amend it. Ultimately, the appeal was allowed, the conviction for murder was set aside, and a retrial was ordered. The judges unanimously agreed on the proposed orders and the reasoning behind them.

Orders

Orders of the court

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Background

Background to the litigation

This ground raises the application of s 268 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). We would grant leave to appeal on this ground, because it raises an issue of practical importance.Facts We return to the facts. Shortly before 2.00 am on 26 January 2005, in the car park of the Marion Hotel in suburban Adelaide, Mr Anderson was doused in petrol and set alight. He suffered severe burns. He died in hospital about 5.00 am on that morning. From the start of the trial the prosecution case was put on two bases. First, that Mr Childs himself committed the murder. Second, that he was a party to a joint enterprise with Ms Brooks to set fire to Mr Anderson and to kill him. The prosecution maintained, correctly, that if the joint enterprise was established, it was not necessary to prove just who set fire to Mr Anderson in the car park. The prosecution case was a circumstantial one. However, it is pertinent to record that although at the early stages of the police investigation Mr Childs denied it, he admitted at trial that he drove to the car park with Ms Brooks on the morning in question, and was present when Mr Anderson was set on fire. The prosecution case that Ms Brooks was with him was very strong. The prosecutor led evidence, to which we have alluded, that Ms Brooks hated Mr Anderson, and had said she wanted him hurt or killed. There was evidence that Ms Brooks and Mr Childs were friendly. There was evidence that Mr Childs had talked of harming Mr Anderson. There was evidence of a telephone call on the evening of 25 January from which the jury could infer that Ms Brooks telephoned Mr Anderson and arranged to meet him at the Marion Hotel car park. There was evidence that Ms Brooks and Mr Childs were in the company of each other on the evening of 25 January. Mr Childs admitted, as we have already said, that he travelled to the car park of the Marion Hotel in company with Ms Brooks. He admitted that he was present at the time when Mr Anderson was set on fire. Mr Childs said that he had no idea that Ms Brooks would do this. The effect of his evidence was that he accompanied Ms Brooks because she had arranged to meet Mr Anderson there, and he wanted to make sure that Mr Anderson did not harm her. He said that he was sitting in the car and saw Ms Brooks and Mr Anderson arguing. Five or six minutes later he saw a flash of flames and saw Mr Anderson running away from the car. He admitted that he left the scene with Ms Brooks. There was strong evidence that Mr Childs had purchased petrol on the way to the car park, and evidence capable of satisfying the jury that he had put it in a portable petrol can. There was evidence that when he purchased the petrol he tried to conceal his identity. There was evidence from people nearby, when Mr Anderson was set on fire, suggesting that when the crucial events unfolded there were three people in the car park. This evidence was capable of supporting a finding that Mr Childs was a participant in the attack on Mr Anderson.

Evidence

Evidence Before The Court

This ground is not reasonably arguable. We would refuse permission to appeal.Additional Ground: That the trial Judge erred in law in directing the jury on the significance of the evidence that Mr Childs was intoxicated This ground raises the application of s 268 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). We would grant leave to appeal on this ground, because it raises an issue of practical importance.Facts We return to the facts. Shortly before 2.00 am on 26 January 2005, in the car park of the Marion Hotel in suburban Adelaide, Mr Anderson was doused in petrol and set alight. He suffered severe burns. He died in hospital about 5.00 am on that morning. From the start of the trial the prosecution case was put on two bases. First, that Mr Childs himself committed the murder. Second, that he was a party to a joint enterprise with Ms Brooks to set fire to Mr Anderson and to kill him. The prosecution maintained, correctly, that if the joint enterprise was established, it was not necessary to prove just who set fire to Mr Anderson in the car park. The prosecution case was a circumstantial one. However, it is pertinent to record that although at the early stages of the police investigation Mr Childs denied it, he admitted at trial that he drove to the car park with Ms Brooks on the morning in question, and was present when Mr Anderson was set on fire. The prosecution case that Ms Brooks was with him was very strong. The prosecutor led evidence, to which we have alluded, that Ms Brooks hated Mr Anderson, and had said she wanted him hurt or killed. There was evidence that Ms Brooks and Mr Childs were friendly. There was evidence that Mr Childs had talked of harming Mr Anderson. There was evidence of a telephone call on the evening of 25 January from which the jury could infer that Ms Brooks telephoned Mr Anderson and arranged to meet him at the Marion Hotel car park. There was evidence that Ms Brooks and Mr Childs were in the company of each other on the evening of 25 January. Mr Childs admitted, as we have already said, that he travelled to the car park of the Marion Hotel in company with Ms Brooks. He admitted that he was present at the time when Mr Anderson was set on fire. Mr Childs said that he had no idea that Ms Brooks would do this. The effect of his evidence was that he accompanied Ms Brooks because she had arranged to meet Mr Anderson there, and he wanted to make sure that Mr Anderson did not harm her. He said that he was sitting in the car and saw Ms Brooks and Mr Anderson arguing. Five or six minutes later he saw a flash of flames and saw Mr Anderson running away from the car. He admitted that he left the scene with Ms Brooks. There was strong evidence that Mr Childs had purchased petrol on the way to the car park, and evidence capable of satisfying the jury that he had put it in a portable petrol can. There was evidence that when he purchased the petrol he tried to conceal his identity. There was evidence from people nearby, when Mr Anderson was set on fire, suggesting that when the crucial events unfolded there were three people in the car park. This evidence was capable of supporting a finding that Mr Childs was a participant in the attack on Mr Anderson.

Decision

Reasons for decision

DOYLE CJ
A further point worth making is that the Judge’s written direction in relation to joint enterprise makes no reference to the need to prove that both parties to the arrangement were present at the scene of the crime and that, while the arrangement remained on foot, one or other of them did, or they together did, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime: see R v Lowery & King (No 2) [1972] VR 560. In the circumstances the failure to refer to both parties being present at the scene of the crime, or to the arrangement remaining on foot, could not have mattered, because there is no doubt that Mr Childs was there. However, it would be better if the direction had included that aspect. If Mr Childs was in the car when Mr Anderson was set alight, there might have been a question as to his remaining part of the arrangement.Conclusion Because of the error made in relation to intoxication, the appeal against the conviction for murder must be allowed. The conviction should be set aside. This is not a case in which the Court can say that there was no reasonable possibility of the jury failing to be satisfied that Mr Childs formed an intention to kill Mr Anderson, or to cause him grievous bodily harm. Nor is it a case in which the error in the summing up can be disregarded on the basis that it could not have affected the jury’s consideration of this issue. We would order a retrial. KELLY J: I agree with the orders proposed by Doyle CJ and Vanstone J and with their reasons.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ

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