(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
30 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY - WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - CAUSATION
Appeal against conviction of murder.
In the early hours of the morning of 8 June 2012 the appellant was socialising with a group of people including his niece BM and NS. They returned to a house where the appellant was said to have gone to sleep. BM and NS went back out to buy methylamphetamine from the deceased and returned with him to pay him with money left in the house. There was evidence: that when they arrived back at the house, the deceased was under the influence of methylamphetamine and groped NS, pulled BM’s hair and threw her against the car; that NS screamed and ran up the stairs, passing the appellant on the way up; that the appellant and the deceased began fighting and the deceased was yelling. A neighbour called 000 at 4:10am.
BM and NS gave evidence that they saw the appellant put a cloth or an item of clothing in the deceased’s mouth to stop him from breathing. There was substantial forensic evidence connecting the appellant with a blood-stained wooden baton which in turn was connected with injuries suffered by the deceased. The appellant’s jacket was heavily stained with the deceased’s blood from more than one impact and efforts had been made to clean up the scene before police arrived. The appellant admitted to burying the deceased’s body in Kuitpo Forest, where it was found the following day. A forensic pathologist diagnosed the cause of death as blunt force trauma to the head along with the presence of methylamphetamine, but said it would be unreasonable to attribute the cause of death just to the methylamphetamine.
The prosecution case was that the accused inflicted multiple forceful blows (the striking case) followed shortly thereafter by a final act of asphyxiation (the asphyxiation case) upon the deceased. The appellant gave to police a version denying any application of force by himself upon the deceased, and gave no evidence at trial. The defence at trial was that the prosecution did not prove the requisite causation or intention nor negate several forms of defence. Defence counsel and the prosecutor agreed that provocation manslaughter need not be left to the jury and the Judge did not do…
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.
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Details
AGLC
R v McCarthy [2015] SASCFC 177
Case
[2015] SASCFC 177
Decision Date
CaseChat Overview and Summary
The defendant appealed his conviction for murder to the Full Court of the Supreme Court of South Australia. The grounds of appeal primarily concerned alleged omissions and deficiencies in the trial judge's summing up to the jury, as well as claims that the judge should have exercised discretion to exclude certain evidence and that the conviction was unreasonable and unsupported by the evidence.
The court was required to determine several legal issues, including whether the trial judge had adequately directed the jury on the defence of self-defence, the partial defence of provocation, and the interplay between the element of intention and the defendant's intoxication. Further issues included complaints arising from the prosecution's presentation of two alternative cases (a "striking case" and an "asphyxiation case"), directions given in respect of the defence case, the admission of evidence of conversations between the defendant and police, and whether the verdict was unreasonable.
The court considered the principles governing a judge's summing up, noting that its role is to crystallise legal issues and simplify the jury's task of applying the law to the facts. It is not necessary for a judge to identify every piece of evidence or argument relevant to the defence, but the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. The court also examined the provisions of section 15 of the Criminal Law Consolidation Act 1935 (SA) concerning self-defence, which distinguishes between complete and partial defences based on the proportionality of the conduct to the perceived threat. The appeal was allowed, and a new trial was ordered.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The defendant has appealed against the conviction. The grounds of appeal primarily relate to alleged omissions and deficiencies in the Judge’s summing up. The defendant also claims that the Judge should have exercised his discretion to exclude evidence and that the conviction was unreasonable and not supported by the evidence. Background BM and NS had been friends since childhood and were living together in Melbourne in June 2012. They were visiting Adelaide on the night of the deceased’s death. The defendant is the uncle of BM. NS has known the defendant since she was a child, as her family lived next door. In the early afternoon of 7 June 2012, BM and her mother met the defendant and his friend, David Ford, at the Elephant & Castle Hotel in the Adelaide CBD. The group later proceeded to the Bath Hotel in Norwood. At 5.10 pm, NS arrived in Adelaide from Melbourne. NS’s ex-boyfriend, Shane Thomas, collected her from the airport and they went to the home of one of Mr Thomas’ associates, Eddie Grace. Mr Thomas owed Mr Grace money for methylamphetamine. While at Mr Grace’s home, NS was introduced to the deceased. Mr Thomas drove NS to the Bath Hotel at about 9.30 pm. NS asked Mr Thomas if he had any methylamphetamine. Mr Thomas said that he did not but agreed to ask the deceased if he had any. Mr Thomas had arranged to meet the deceased at the hotel when dropping off NS. After speaking with the deceased in the car park of the Bath Hotel, Mr Thomas informed NS that the deceased would catch up with NS later that evening and supply methylamphetamine. The defendant, Mr Ford, BM, BM’s mother and NS remained at the Bath Hotel until about 10.50 pm. The group then went to Strats Nightclub on Hindley Street in the Adelaide CBD. While at Strats Nightclub, NS was in contact with the deceased and arranged to meet him later to collect the methylamphetamine. At about 1.45 am on 8 June 2012, the defendant, BM and NS left the nightclub and caught a taxi to the Bath Hotel to collect the defendant’s car. From there, the defendant drove BM and NS to a property NS was renting in Beaumont. BM and NS gave evidence that they did not want the defendant to know that they were attempting to purchase drugs as they thought he would not approve. However, they needed the defendant’s car in order to meet the deceased. BM and NS persuaded the defendant to sleep at the Beaumont property. The only other resident of the Beaumont property was Rebekah Cross, who was home in bed that evening. Upon arriving at the property, NS telephoned Ms Cross to ask her to let them into the house. Ms Cross let NS in through the front door, which was located on the first floor. The ground floor of the property was the garage. Ms Cross went downstairs, using internal stairs, and opened the roller door on the left hand side of the driveway. NS told the defendant to go upstairs from the garage and sleep on the lounge on the first floor. BM and NS then took the defendant’s car and met the deceased at about 3.20 am on 8 June 2012 near the end of the South Eastern Freeway at Mount Osmond. NS got into the deceased’s vehicle and the deceased gave her a small container of methylamphetamine. The deceased demanded $500.00. NS did not have that amount of money with her. She believed Mr Thomas had already taken care of payment. The deceased said that he would drive NS back to the Beaumont property so that she could get the money. NS asked BM to come in the deceased’s vehicle with her. The deceased drove BM and NS to the Beaumont property. BM and NS gave evidence that the deceased was agitated and appeared to be under the influence of drugs. Both BM and NS deposed that they felt uncomfortable during the drive as the deceased was staring at BM in the rear vision mirror. Evidence was led at trial that, at the time of his death, the deceased had methylamphetamine in his body.
Evidence
Evidence Before The Court
The role of the summing up includes a crystallisation of the legal issues in a way that simplifies the jury’s task of applying the relevant legal principles to the facts of the case. A judge should take care to explain the law in a way that is practical having regard to the context and the real issues in the particular case. It is well settled that it is not necessary for a judge to identify each piece of evidence or argument relevant to a defendant. As the High Court observed in Domican:[11] ... Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it “is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities”. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.[Emphasis added.][11] Domican v The Queen (1992) 173 CLR 555, 561. In addressing the grounds of appeal, where appropriate, I have been guided by the above observations. The Appeal The defendant has appealed on multiple grounds, which are convenient to consider under the following broad headings:-the Judge’s alleged failure to correctly identify, sum up and direct on available self defence provisions under the Criminal Law Consolidation Act; -the Judge’s alleged failure to leave the defence of provocation;-complaints resulting from the two alleged alternative cases presented by the prosecution, being the striking case and the asphyxiation case;-complaints as to directions given by the Judge in respect of the defence case; -the Judge’s alleged failure to direct the jury properly in respect of the element of intention and its interplay with the defendant’s intoxication;-complaints as to the admission of evidence of conversations between the defendant and the police, and the directions provided as to the use of that evidence; and-a claim that the verdict is unreasonable and cannot be supported having regard to the evidence. Self Defence and Defence of Another Section 15 of the Criminal Law Consolidation Act relevantly provides: (1) It is a defence to a charge of an offence if— (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and (b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1. (2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but (b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2 (3) For the purposes of this section, a person acts for a defensive purpose if the person acts— (a) in self defence or in defence of another; or (b) to prevent or terminate the unlawful imprisonment of himself, herself or another....Notes—1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable. 2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.[Emphasis added.]