R v Fleming; R v Maher (No 2)

Case [2017] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v FLEMING; R v MAHER (NO 2)

Criminal Trial by Judge Alone

[2017] SASC 17

Judgment of The Honourable Justice Doyle

16 February 2017

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - CONSTRUCTIVE MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - CAUSATION

Trial by judge alone. The defendants, Mr Fleming and Mr Maher, are charged with murder. The Information alleges murder under s 12A of the Criminal Law Consolidation Act 1935 (SA) (statutory murder), or in the alternative under s 11 of that Act (common law murder).

The defendants disembarked from a train at Woodville railway station at about 12.30 am on 29 October 2014. They intended to walk to an address in Ottoway, where Mr Fleming was staying at the time. At some point between 2.00 am and 2.30 am, the defendants were involved in an altercation with the deceased near the corner of Thirteenth Avenue and Hanson Road. The deceased’s body was subsequently found at that location.

The particulars of the charge of statutory murder are that on 29 October 2014, at Woodville North, the defendants committed an intentional act of violence while acting in the course of or furtherance of an offence, namely aggravated robbery, and thus caused the death of the deceased. The prosecution case is that the deceased died from a hypoxic ischaemic injury resulting from neck compression and consequential obstruction of the venous outflow of blood from his brain, and that the neck compression was the result of a headlock applied by Maher during the course of the defendants’ altercation with the deceased. It is alleged that the defendants were engaged in a joint enterprise or common purpose to rob Mr Collins when the altercation occurred and the headlock was applied. The defendants denied any such common purpose. While not conceding that they robbed the deceased, they also contended that it was reasonably possible that any such robbery was an afterthought to the altercation, rather than part of a common purpose.

In the alternative, the prosecution alleges common law murder. In relation to Mr Maher, it is alleged that he applied the headlock while intending to inflict grievous bodily harm.  So far as Mr Fleming is concerned, it is alleged that when applying the headlock, Mr Maher was acting pursuant to a common purpose to inflict grievous bodily harm. Mr Maher denied any intention to cause grievous bodily harm; Mr Fleming denied any common purpose.

In the further alternative, the prosecution alleges that the defendants are guilty of manslaughter.  In this respect, the prosecution case is that Mr Maher, in applying a headlock to Mr Collins, committed an unlawful and dangerous act.  So far as Mr Fleming…

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AGLC
R v Fleming; R v Maher (No 2) [2017] SASC 17
Case
[2017] SASC 17
Decision Date

CaseChat Overview and Summary

The defendants, Fleming and Maher, were prosecuted for their roles in a fatal altercation that occurred in Melbourne. The dispute between the parties centred around the interpretation of the evidence presented, particularly the circumstances leading to the death of the victim, and the applicability of the charges of murder and manslaughter against each defendant. The case was heard in the Supreme Court of Victoria.

The court was required to determine the legal issues surrounding the causation of the victim's death, the mens rea of the defendants, and whether the prosecution had proven the elements of murder and manslaughter beyond reasonable doubt. This involved assessing the circumstantial evidence presented, the credibility of the witnesses, and the admissibility of the defendants' police interviews. The court had to consider whether the prosecution had excluded all reasonable hypotheses consistent with the innocence of the defendants.

In reaching its decision, the court carefully considered the totality of the circumstances and the combined force of all the evidence. The court accepted the evidence of the expert witnesses and the police and lay witnesses called by the prosecution, but found that the defendants' versions of events, as given during their police interviews, were not entirely reliable. The court found that both defendants were affected by alcohol throughout the events, which may have affected their perception and recollection. The court accepted some parts of the defendants' versions but rejected others, finding that there was no reasonable explanation for all the accepted evidence other than that the particular defendant was guilty of the offence in question. The court found that the prosecution had proven the elements of the charges against the defendants beyond reasonable doubt.

The court found Fleming guilty of murder and Maher guilty of manslaughter. The court ordered that Fleming be sentenced for murder, and Maher be sentenced for manslaughter. The court further ordered that the sentences be determined in a subsequent hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As mentioned, the defendants elected not to give evidence. They were not required to give evidence. They have the right to decline to give evidence. I do not draw any inference adverse to them or the case they put forward as a result of their exercise of that right. There may be many reasons why they did not give evidence and I do not speculate about them.Circumstantial evidence The prosecution case against the defendants is in many respects circumstantial. In approaching the circumstantial aspects of the case, I must first consider the facts upon which the prosecution relies as circumstantial evidence, and decide which facts I accept as established by the evidence. I must then consider what inferences I am prepared to draw from those facts. In so doing, I must consider the totality of the circumstances, and the combined force of all the circumstances put together, regardless of the direction in which each individual circumstance may point. Neither defendant is to be found guilty unless there is no reasonable explanation for all the accepted evidence other than that the particular defendant is guilty of the offence in question. To put that another way, if there remains any reasonable hypothesis consistent with the innocence of a defendant, that defendant must be acquitted.Separate consideration I must be careful to ensure that the case against each of the defendants is considered separately. The evidence may warrant the conviction of one defendant and not the other. The need to ensure separate consideration of the case against each defendant is of particular significance when considering the police interviews of the respective defendants given that statements made in those interviews are admissible only in the case against the defendant who made the relevant statement. Assessment of witnesses Expert evidence was given by Professor Blumbergs, Dr Heath, Ms Mitchell and Professor White. It is a matter for me to assess the weight to be attached to their opinions having regard to their qualifications. I am entitled to accept or reject their evidence in whole or in part as I see fit. I accept the expertise of the expert witnesses called by the parties (Professor Blumbergs, Dr Heath, Ms Mitchell and Professor White), and the evidence they gave. The inferences and conclusions that I consider can be drawn from their evidence, when considered in combination with the other evidence in the case, is the subject of detailed consideration later in these reasons. I accept the evidence of each of the police witnesses called by the prosecution. That said, I do not understand any of the matters about which they gave evidence to be a matter of contest. Their evidence was largely as to formal matters. I accept that each of the lay witnesses called by the prosecution (Ms Kropinyeri, Ms Chilton, Ms Maynard, Mr Vincent, Mr Hodgson, Ms Reid, Mr Harvey, Mr Bayley and Mr Taylor) were honest and reliable witnesses. Again, the substance of their evidence was not a matter of contest between the parties. Most of the issues in this case turn more on the inferences that can be drawn from the evidence, including the oral evidence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Neither defendant is to be found guilty unless there is no reasonable explanation for all the accepted evidence other than that the particular defendant is guilty of the offence in question. To put that another way, if there remains any reasonable hypothesis consistent with the innocence of a defendant, that defendant must be acquitted.Separate consideration I must be careful to ensure that the case against each of the defendants is considered separately. The evidence may warrant the conviction of one defendant and not the other. The need to ensure separate consideration of the case against each defendant is of particular significance when considering the police interviews of the respective defendants given that statements made in those interviews are admissible only in the case against the defendant who made the relevant statement. Assessment of witnesses Expert evidence was given by Professor Blumbergs, Dr Heath, Ms Mitchell and Professor White. It is a matter for me to assess the weight to be attached to their opinions having regard to their qualifications. I am entitled to accept or reject their evidence in whole or in part as I see fit. I accept the expertise of the expert witnesses called by the parties (Professor Blumbergs, Dr Heath, Ms Mitchell and Professor White), and the evidence they gave. The inferences and conclusions that I consider can be drawn from their evidence, when considered in combination with the other evidence in the case, is the subject of detailed consideration later in these reasons. I accept the evidence of each of the police witnesses called by the prosecution. That said, I do not understand any of the matters about which they gave evidence to be a matter of contest. Their evidence was largely as to formal matters. I accept that each of the lay witnesses called by the prosecution (Ms Kropinyeri, Ms Chilton, Ms Maynard, Mr Vincent, Mr Hodgson, Ms Reid, Mr Harvey, Mr Bayley and Mr Taylor) were honest and reliable witnesses. Again, the substance of their evidence was not a matter of contest between the parties. Most of the issues in this case turn more on the inferences that can be drawn from the evidence, including the oral evidence. As will became apparent during these reasons, the prosecution submitted that I should reject various aspects of the versions of relevant events given by the defendants when interviewed by the police on 29 October 2014. In assessing the reliability of their versions of events, I have taken into account my later findings to the effect that both defendants were affected by alcohol throughout the relevant events. This may have affected their perception and recollection of those events. As will become apparent, I have ultimately accepted some parts of their versions, and rejected other parts. While rejection of aspects of their versions of events is relevant to my assessment of the creditworthiness of the defendants and hence the reliability of the balance of their versions of events, it was not submitted that I should find that they told any lies that amounted to an implied admission of guilt (or reflected a consciousness of guilt) and that were hence themselves probative of the relevant defendant’s guilt of the offences charged. EVENTS SURROUNDING THE ALTERCATION