R v CMM - [2002] SASC 21

R v CMM
[2001] SASC 21
Court of Criminal Appeal: Doyle CJ, Martin and Besanko JJ

DOYLE CJ I would dismiss the appeals against conviction. I agree with the reasons given by Martin J.
MARTIN J The appellant was convicted by a jury of murder, wounding with intent to do grievous bodily harm and attempted armed robbery. He appeals against the convictions of murder and wounding with intent.
In the early hours of Saturday 10 December 1999, Mr Colin Hillam and the deceased Mr Matthew Bourne walked from the city in a north easterly direction along North Terrace. They were walking along the northern footpath. At about the same time the appellant and four other young male persons were driving away from the city along North Terrace in a motor vehicle which the group had stolen earlier that evening. There was no dispute that earlier in the evening the group had talked of “rolling” someone to obtain a mobile phone. As Hillam and Bourne approached the intersection of North Terrace and Fullarton Road, one of the group in the car saw Hillam speaking on his mobile telephone. In essence, the appellant and the others in the motor vehicle agreed to rob Hillam of his mobile telephone.
The motor vehicle was stopped a short distance behind Hillam and Bourne. The appellant and two other persons, Mr E and Mr A, got out of the motor vehicle. The appellant was already in possession of a cue ball in a stocking. He said he had it with him because of previous trouble at an “under age rave”. He thought the same people would come looking for them again. In addition, the appellant armed himself with a knife. A gave his knife to the appellant. During cross-examination the appellant agreed that he made a specific effort to get the knife. As to why he did so, the appellant said:
“AWell, I only had that cue ball in a stocking. I thought if we were going to rob them I couldn’t use that to threaten anyone.”
The appellant was aware that E regularly carried a knife. He said that both he and E had the knives hidden when they alighted from the motor vehicle. He agreed that when the group got out of the vehicle and walked toward Hillam and Bourne, he was aware that E was carrying a knife. The appellant acknowledged that if the evidence of Hillam was accepted, E must have had the knife in his hand as he approached Hillam. However, the appellant maintained that he did not see the knife in E’s hand.
According to the appellant, he did not have any plans as to what he was going to do or when he was going to do it. He thought it would be over really quickly. He anticipated using the knife to threaten Hillam and Bourne. The appellant denied intending to use the knife to inflict any injury. He said he thought E would also use his knife just…

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 R v CMM

Details

AGLC: R v CMM [2002] SASC 21
Case: [2002] SASC 21
Decision Date: 31 January 2002

CaseChat Overview and Summary

In the Court of Criminal Appeal, the appellant, CMM, contested his convictions for murder and wounding with intent to cause grievous bodily harm. The case revolved around an armed robbery attempt gone awry, where the appellant and two others accosted two men, resulting in severe injuries to one and the death of the other. The court had to address whether the trial judge correctly dismissed the jury's consideration of self-defence and whether the judge's instructions on statutory murder were appropriate. The judges found no merit in the appeal against the convictions. They concluded that the trial judge's exclusion of self-defence from the jury's deliberation was justified as the evidence did not support a reasonable possibility of self-defence on the part of either the victims or the appellant. Additionally, the court upheld the trial judge's instructions on statutory murder, finding them to be legally sound and supported by the evidence. The judges affirmed the convictions, dismissing the appeals.

Orders