R v Heeremans - [2007] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEEREMANS
[2007] SASC 187
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Bleby and The Honourable Justice Gray)
25 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL
Appeal against conviction - appellant convicted of murder following a trial before a jury - appellant's co-accused acquitted - whether the Judge, by referring to the appellant as "the striker" in his summing up, effectively invited the jury to proceed on the basis that the appellant was the striker of the blow that ruptured the deceased's spleen, and so did not invite the jury to decide that question themselves - whether the Judge gave disproportionate weight to the premise that the fatal blow was struck by the appellant and inadequate weight to the appellant's defence - whether the appellant was denied a fair trial by his counsel not vigorously pursuing, in cross examination or in addresses to the Judge and jury, the possibility of an alternative hypothesis of the cause of death - whether verdict was unsafe and unsatisfactory - Held: appeal dismissed - appellant had admitted being the striker of a blow with a crowbar to the torso of the deceased, and so it was appropriate and accurate to identify the appellant as the striker - the Judge emphasised to the members of the jury the questions that they needed to be satisfied of before convicting the appellant - the jury was properly directed on the law and was given an extensive summary of the relevant evidence - defence counsel at trial conducted the appellant's defence with skill and care - it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.
Royall v The Queen (1990) 172 CLR 378; R v B (1992) 63 A Crim R 225; R v Sukkar [2005] NSWCCA 54; RPS v R (2000) 199 CLR 620; R v Birks (1990) 19 NSWLR 677; R v Scott (1996) 137 ALR 347 ; R v Oliverio (1993) 61 SASR 354; Nudd v R (2006) 225 ALR 161; TKWJ v R (2002) 212 CLR 214; Ali v R (2005) 214 ALR 1; M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606, considered.

R v HEEREMANS
[2007] SASC 187
Court of Criminal Appeal: Nyland, Bleby and Gray JJ

NYLAND J: I agree with the reasons of Gray J and the orders proposed.
BLEBY J: I agree with the orders proposed by Gray J and with his reasons. I have…

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 Heeremans

Details

AGLC: R v Heeremans [2007] SASC 187
Case: [2007] SASC 187
Decision Date: 25 May 2007

CaseChat Overview and Summary

In the case of R v Heeremans, the appellant sought to appeal his conviction for murder following a trial before a jury, where his co-accused was acquitted. The grounds for appeal included the claim that the Judge, by referring to the appellant as "the striker" in his summing up, effectively invited the jury to proceed on the basis that the appellant was the person who struck the fatal blow, and therefore did not invite the jury to decide that question themselves. The appellant also argued that the Judge gave disproportionate weight to the premise that the fatal blow was struck by the appellant and inadequate weight to the appellant's defence. Furthermore, the appellant argued that he was denied a fair trial by his counsel not vigorously pursuing, in cross-examination or in addresses to the Judge and jury, the possibility of an alternative hypothesis of the cause of death. The central issue before the Court was whether the verdict was unsafe and unsatisfactory.

The Court considered whether the Judge's reference to the appellant as "the striker" was appropriate and whether it effectively invited the jury to proceed on the basis that the appellant was the striker of the blow that ruptured the deceased's spleen. The Court held that the appellant had admitted being the striker of a blow with a crowbar to the torso of the deceased, and so it was appropriate and accurate to identify the appellant as the striker. The Judge emphasised to the members of the jury the questions that they needed to be satisfied of before convicting the appellant. The jury was properly directed on the law and was given an extensive summary of the relevant evidence. The Court found that the defence counsel at trial conducted the appellant's defence with skill and care. It was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.

In conclusion, the Court dismissed the appeal. The Court found that the appellant had admitted being the striker of a blow with a crowbar to the torso of the deceased, and so it was appropriate and accurate to identify the appellant as the striker. The Judge emphasised to the members of the jury the questions that they needed to be satisfied of before convicting the appellant. The jury was properly directed on the law and was given an extensive summary of the relevant evidence. Defence counsel at trial conducted the appellant's defence with skill and care. It was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, pursuant to leave, appeals on the ground that the verdict was unsafe and unsatisfactory. An earlier application for leave on other grounds was refused. The appellant now seeks leave from this Court on three further grounds. In the event, consideration of the ground that the verdict was unsafe and unsatisfactory also involved consideration of the matters sought to be raised on the proposed grounds. The Court directed that full argument be heard on the proposed grounds.The Facts On the evening of Friday 25 July 2003, Mr Ballard was a passenger in a Toyota sedan being driven by SH, then aged 16 years. SH’s younger sister, MH and JP, both aged 14 years, were also passengers. At relevant times the Toyota was travelling west on Sir Donald Bradman Drive. At the same time the appellant was driving a Holden sedan on Sir Donald Bradman Drive also in a westerly direction. Present in the appellant’s vehicle were his co-accused at the trial: DRC, the McKennas and MJS. Rachel Sant, MJS’s girlfriend was also in the vehicle. As the vehicles travelled on Sir Donald Bradman Drive, there was some interaction between their occupants. Both vehicles turned left to travel south on Tapleys Hill Road towards Glenelg. While on Tapleys Hill Road, Mr Ballard threw or dropped a drink can from the front passenger window. At that point the exchange between the occupants of the two vehicles became heated. An occupant of the appellant’s vehicle indicated to the Toyota to pull over. The Toyota turned left into a side street and stopped outside a block of flats. The Holden followed and stopped to the rear of the Toyota. Mr Ballard left the Toyota and approached the Holden. DRC got out of the front passenger seat of the Holden. A fight started on the footpath and then moved to the front lawn of the block of flats. The remaining male occupants of the Holden got out of the vehicle and joined in. On the prosecution case, the appellant and his co-accused then assaulted Mr Ballard. Mr Ballard, it was said, was restrained by a number of the co-accused, while the appellant struck him repeatedly with a crowbar[1] to the torso. [1] The crowbar was a 90 centimetre iron bar. This version was disputed by the appellant and his co-accused. However, the appellant admitted delivering one blow with a crowbar to Mr Ballard’s torso. The appellant claimed that this blow was delivered later in the course of the fight in self-defence. During the fight, on the prosecution case, the fatal blow to Mr Ballard was struck by the appellant. It was said that the blow was delivered using a crowbar. Following this blow, the fight moved down a driveway to the side of the block of units. The co-accused, DRC and Patrick McKenna were involved with Mr Ballard as they moved down the driveway. The appellant’s evidence was that by this time he had returned to his vehicle. Occupants of the units described shouting and yelling as the fight moved down the driveway. One witness spoke of a crash as though someone had hit the front window of a unit. Another observed events in the driveway from his first floor balcony. He described four men in a line walking towards the rear of the property with another male to the front of them walking backwards. He observed the men punching the man walking backwards until that person slouched to the ground.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

An independent examination of the evidence reveals that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.[11][11] M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606.Conclusion As earlier observed the submission put in support of the complaint that the verdict was unsafe and unsatisfactory incorporated the substance of the submissions put with respect to the proposed grounds of appeal. In this circumstance leave to appeal should be granted. However, for the reasons earlier set out, this appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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