R v Croxford
[2009] VSC 519
•4 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT WODONGA
CRIMINAL DIVISION
No. 1406 of 2009
| THE QUEEN | |
| v | |
| RONALD CROXFORD | Accused |
| and | |
| RICKY DOUBLEDAY |
Ruling No 4
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JUDGE: | COGHLAN J | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 4 August 2009 | |
DATE OF RULING: | 4 August 2009 | |
CASE MAY BE CITED AS: | R v Croxford & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 519 | |
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CRIMINAL LAW – Murder – Co-Accused – No case submission – Conviction open to the jury – Doney v R (1990) 171 CLR 215.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused Croxford | Mr G. Georgiou | Mario Vaccaro |
| For the Accused Doubleday | Mr G. Meredith | Kerry Clancy |
HIS HONOUR:
Upon the conclusion of the Crown case, Mr Georgiou of counsel who appeared for the accused Croxford, applied to defer the announcement of his course in order to make a submission. I granted leave, see R v Faure & Corrigan.[1]
[1] [1978] VR 246.
Mr Meredith of counsel, who appears for the accused Doubleday, announced that he was calling no evidence. Mr Georgiou then proceeded to make a no case submission on behalf of his client. In summary he submitted that in accordance with the principles set down by the High Court in Doney v R,[2] his client had no case to answer on the charge of murder.
[2] (1990) 171 CLR at 215.
In the circumstances of the present case, it followed that should the submission be successfully made, there would also be no case to answer on the statutory alternative charge of manslaughter.[3] Mr O'Doherty who appeared for the Prosecution submitted that there was in fact a case to answer.
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[4]
[3] See Crimes Act 1958, s 421.
[4] Doney v R (1990) 171 CLR at 215.
The question therefore, is whether the evidence taken at its highest is capable of sustaining a guilty verdict. The evidence in the case is in relatively short compass.
In the early hours of the morning of Sunday 27 July 2008, both accused, the deceased and two young women named Ferguson and Plunkett were immediately outside the Birralee Tavern in West Wodonga. They remained there outside the tavern for more than 20 minutes, before the deceased, William Winter, produced a knife. What Winter did with the knife is disputed on the evidence. Whether he handled the knife in a threatening manner or not, it is common ground that the knife was produced and further then when he did so, the accused Croxford reacted immediately. The reaction of the accused towards the deceased was aggressive, and was predicated on the production of the knife.
Over the next few minutes there was open hostility between Croxford and the deceased who was, at the very least, answering back. On the better view of the evidence, it is likely that the deceased put the knife away somehow, just where is unknown.
The deceased was then observed with a belt wrapped around his right hand, approximately 30 or 40 centimetres of which was hanging down, with a relatively large buckle fixed to the end. It was suggested in cross-examination that it was intended to be used as a weapon.
Whilst still outside the Birralee Tavern, the deceased was struck to the face by both accused, somewhat more forcefully by Doubleday. The deceased did not retaliate, although on the evidence, he continued to ‘mouth off’. Following the strike by the accused Doubleday, the deceased held his hands above his head and was heard to utter words to the effect that ‘he was walking away’.
The argument between the accused Croxford and the deceased however, continued past the front of the tavern and around into Leisure Centre Drive. There was no physical confrontation, the deceased travelling more than 200 metres up Leisure Centre Drive. The deceased and the accused Croxford were, on the evidence, never far apart although the deceased probably got ahead at some stage.
The accused Doubleday armed himself with a garden stake, and ran or jogged after the other men. It should be noted that on the evidence, although the witness Plunkett claimed she was not 100 per cent sure of who grabbed the stake, her description of the relative position of the accused Croxford and the deceased leads it to seem it almost inevitable that it was the accused Doubleday she witnessed arm himself. In his own case, that matter is accepted. Not much of relevance is observed by witnesses thereafter.
It would be open to the jury to conclude that both the accused men pursued the deceased with hostile intent. That is, pursued him intending to do him some harm and that in each of their cases armed themselves with a tree stake, measuring five centimetres square and made from hardwood.
No witness appears to hear the actual events which led to the death of Mr Winter. The nearest witness is one Brenton McNicol, his evidence relevantly follows and I there set out those parts of his evidence beginning at line 25 on p 295 of the transcript.
“Before the appeared in your sight, did you hear any male voice say anything about what was happening?---Yes, I heard, ‘No, Mick, let’s go’.
How long before you sighted them did you hear those words?
---Three seconds.
After the men had run across, or moved across Simmons Court and entered that walkway, did you proceed back inside your house and go upstairs?---Yep.”
In cross-examination, he was later asked:
“At some stage you heard the words ‘No, Mick, no’?---Yes.
They were uttered fairly quickly?---Yes.
Did they have a desperate sound to them?---You mean - what do mean by desperate? Just define that a bit more, please.”
Mr Georgiou then said:
“The voice that uttered, ‘No, Mick, no’ said it very quickly?---Yes. In a panicked or desperate tone? --- You could say to a form of that, yes.
I understand that you heard the words, ‘No, Mick, no’ but in those circumstances and the speed at which they were said, is it possible the words were, ‘No, Rick, no’?---It could be possible but that’s what I heard.
I understand that you heard, ‘No, Mick, no’, but you would concede the possibility it might have been, ‘No, Rick, no’?---It could, yeah, Rick, Nick.
You heard some noises before that, hadn’t you?---Yes.
After you heard, ‘No, Mick, no’, you heard the words, ‘Let’s go’? The witness has nodded.
At some time after you saw the two figures crossing in a very short period after that, you’ve said three seconds, haven’t you?---Yep.
But that’s really a guess on your part?---That’s a guess.
I take it that as you sit here today, it’s difficult now to remember how long after you heard, ‘No, Mick, no, let’s go’ that you saw the figures?---Yes.
And one figure was in front of the other?”
And he was not able to say whether it was the same voice that said, “No, Mick, no” and “Let’s go.”
“When you heard the words, ‘No, Mick, no’, you could also hear the sounds of something similar fighting?---No, that had stopped.
In any event, it is the case that what you meant by fighting, you meant yelling and screaming?---That was the idea I got, was it sounded like a verbal fight.
A verbal fight?---Yes.
Thank you.”
It follows that it would be possible to say that on the whole of his evidence, the words said to have been heard by the witness, McNicol, were used at or towards the end of the incident. The question becomes, would the jury be entitled to say, beyond reasonable doubt on that evidence, that the words were used after the fatal blow had been struck, or rather would it do no more than open the possibility that the words were spoken at that time. The analysis predicated on the proposition that they were also only spoken once and close together, but that is not the end of the matter.
The next relevant piece of evidence which falls for consideration is the record of interview of the accused, Croxford. The truly relevant portions proceed from question 19 onwards:
“In relation to this incident, are you able to tell us anything about it?
---I didn’t cause - I didn’t cause him any serious injury, yep, I didn’t kill him. Just that he had a knife, when I seen the knife we were out the front of the Birralee. I then threw a punch at him. I don’t even know if that punch hit or not, I was just worried when I saw the knife, it just brought back a lot of things. A mate of mine was - a mate of mine’s younger brother was stabbed here in town just down the road from there about four years ago, to death and I was just worried about Rick and when I threw that punch I thought, shit, I’m in trouble now, so I wanted - I wanted to get the knife and I wanted him to just throw the knife away so I could get - I was going to get the knife and give it to them at the Birra or give it to the cops and have him charged. He’s the one with the knife. That was my full intention, just drop the knife, mate, leave it here, drop it and it would’ve been fine, everything was fine.
Are you able to tell us how all this came about?---I don’t really know. I know Rick was talking to him at one stage and then I was. I was away from him that time and when I walked over is when I’ve seen the knife and I told him to drop it and I went to hit. I’m not sure if I did connect or not, all right.
All right. What basically happened after that?---Well he got hit, and I didn’t do it, I didn’t kill him.
And what were the circumstances about being hit?---He ran - he ran at me with the knife. I hit him as he came - come at me, probably from about here to the wall he would have been when I hit him with a bit of wood.
Like a garden stake?---Yeah. He stopped, and that stopped him. I’ve hit him either round - round this area, high up on the body, and that was it. I didn’t - I didn’t hit him again, and then someone else hit him and hit him hard and I grabbed them and told them to stop.
All right?---And yeah, it was too hard. It was fucking crazy. It was - there was no need for that, there wasn’t any need for that fucking.
After you’ve - after you’ve hit him with the stake what did you do?---I stood back, I didn’t do anything after that. I mean I didn’t do anything after that because I mean, yeah, he was, you know, he wasn’t going at me anymore, you know. I didn’t see any reason for any more of it. Like the threat was over I mean he was on one knee and yeah my mate - - -
All right, what did you do with your stake, the stake you had?---I’m not sure. Rick took off, I followed him and said ‘What did you fucking do that for?’ I said ‘We’ve got to go back and look after him. We’ve got to go and see if he’s all right,’ and he goes, ‘No, let’s just go.’ I said ‘No.’ I said ‘We’ve got to fucking see if he’s all right, mate. Come on’. And we started walking back to where he was and a police car pulled up behind us and a police car pulled up where he was and then yeah, that was then they put us in - put us in the car.
Do you recall where the stake you had - where you left that?---No, I’m not sure.”
It seems to me, on the proper analysis of that evidence, it would be open to say that the protestations from the accused came after at least the first blow was struck, and when the passages are read as a whole, after all the blows had been struck. You are not able to say on the evidence against Croxford how many blows were struck, except on the pathologist evidence it was more than one blow and there may have been other blows.
The evidence must be viewed as a whole and in particular the passage in Croxford’s record of interview:
“Rick took off, I followed him and said ‘What did you fucking do that for?’ I said ‘We’ve got to go back and look after him. We've got to go and see if he’s all right,’ and he goes, ‘No, let’s just go.’ I said ‘No. We’ve got to fucking see if he’s all right, mate,”
It would be open for the jury to say that the sequence of at least the first two blows were so close together, the protestation was not made till the completion of the fatal blow. These are matters for the jury to consider - they do not have to so decide, but is it open for them to decide. In the event the jury did decide that the protestation was made following the blow, it would be open for them to convict the accused and I reject the no case submission.
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