R v Miller

Case [2019] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Permission to Appeal)

R v MILLER

[2019] SASCFC 91

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)

29 July 2019

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION

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

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - DIRECTIONS TO JURY

Application for permission to appeal against a conviction by jury of murder.

The evidence at trial was that the deceased, Danny Coombs, was killed outside his home in Barmera, during an altercation on the roadway between him and the applicant. The applicant was his next-door neighbour. Both men were intoxicated. There had been prior confrontations between the applicant and the deceased.

It was common ground that on the night of the incident both the applicant and the deceased were yelling and insulting one another. The deceased struck the applicant with a metal pole up to three times. The applicant was armed with a knife and fatally stabbed the deceased. The prosecution’s case was that the applicant provoked the fight and the stabbing was a deliberate act done under cover of self-defence. The applicant gave evidence that the stabbing was accidental and he did not intend to harm the deceased.

The grounds of appeal raise the following issues for determination. First, on the version of facts most favourable to the applicant, was provocation raised on the evidence?  If so, did the trial judge err in failing to leave provocation to the jury? (Ground 3). Second, were the trial judge’s directions on self-defence erroneous in inviting the jury to consider self-defence only if having found the applicant had lied about an unintentional wounding? (Ground 4). Third, Were the trial judge’s directions on self-defence erroneous in inviting the jury to consider whether the applicant had been a “willing combatant” and, if so, to conclude that, without more, self-defence had therefore been negated? (Ground 1).

Held per Stanley J (Parker and Doyle JJ agreeing):

1.  On the version of facts most favourable to the applicant provocation was not raised on the evidence. The trial judge did not err in failing to leave provocation to the jury.

2.  The trial judge’s directions to the jury on self-defence were not erroneous.

3.  Application for permission to appeal granted.

4.  Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 15(1), referred to.
Lindsay v The Queen (2015) 255 CLR 272, applied.
Masciantonio v The Queen (1985) 183 CLR 58; Van den Hoek v The Queen (1986) 161 CLR 158; Stingel v The Queen (1990) 171 CLR 312; Perara-Cathcart v The Queen (2017) 260 CLR 595; Morgan v Colman

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Details
AGLC
R v Miller [2019] SASCFC 91
Case
[2019] SASCFC 91
Decision Date

CaseChat Overview and Summary

The applicant, R, appealed to the Full Court of the Supreme Court of South Australia against his conviction for murder. The appeal concerned the trial judge's directions to the jury regarding the defences of provocation and self-defence. The applicant and the deceased, Danny Coombs, were neighbours who had a history of animosity and prior confrontations, exacerbated by the deceased's alleged past violence towards his partner, who had informed the applicant of this. Both men were intoxicated at the time of the fatal altercation.

The central legal issues before the Full Court were whether the trial judge had erred in failing to leave provocation to the jury, given the version of facts most favourable to the applicant, and whether the directions on self-defence were erroneous. Specifically, the court considered whether the judge wrongly invited the jury to consider self-defence only if they found the applicant had lied about an unintentional wounding, and whether the judge incorrectly directed the jury to conclude self-defence was negated if the applicant was found to be a "willing combatant" without further consideration.

The Full Court, comprising Stanley, Parker, and Doyle JJ, granted permission to appeal but ultimately dismissed the appeal. Stanley J rejected the third limb of the grounds of appeal, which related to the "willing combatant" direction on self-defence. While the specific reasoning for rejecting each ground is not fully detailed in the provided text, the collective decision indicates that the court found no reversible error in the trial judge's directions on provocation or self-defence, or that any such errors did not warrant overturning the conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The proposed amended grounds of appeal filed on 11 February 2019 raise the following issues for determination:1.On the version of facts most favourable to the applicant, was provocation raised on the evidence? If so, did the trial judge err in failing to leave provocation to the jury? (Ground 3).2.Were the trial judge’s directions on self-defence erroneous in inviting the jury to consider self-defence only if having found the applicant had lied about an unintentional wounding? (Ground 4).3.Were the trial judge’s directions on self-defence erroneous in inviting the jury to consider whether the applicant had been a “willing combatant” and, if so, to conclude that, without more, self-defence had therefore been negated? (Ground 1).The evidence at trial The deceased, Danny Coombs, was killed on 1 February 2017 on the street outside his home in Barmera, during an altercation on the roadway between him and the applicant. The applicant was his next-door neighbour. Both men were intoxicated.[1][1] Agreed facts No. 23 and 24 of P20; T498-508. The applicant lived at 128 Nookamka Terrace in Barmera. The deceased, when with his partner Jessica Bridgland (Jessica), lived at 126 Nookamka Terrace. The deceased had only resumed residence with Jessica about a week prior to his death.[2][2] T540. Jessica and the deceased had been in a relationship for about 13 months. Jessica gave evidence that the deceased had been violent towards her in the past, that she had sought an intervention order and that she had told the applicant that she had done so.[3][3] T568, 580. There had been prior confrontations between the applicant and the deceased, owing to and adding to their dislike of one another. On one occasion, police had attended due to a dispute. Neighbours gave evidence of hearing other disputes. The incident police had attended occurred approximately 10 months prior to the fatal stabbing. At trial this became known as the “Pichl incident” because officer Pichl was the police officer who had attended at Nookamka Terrace. Officer Pichl had spoken to each of the men, and had found the deceased in possession of a knife away from the scene, albeit this was some time after the incident and there were opportunities for the deceased to have armed himself in the interim. At the time of this incident, one of the neighbours, David Mills, had heard an argument between the applicant and another male who he thought was the deceased, where one of them was heard to say words to the effect, “put the knife down”.[4] It was not entirely clear on the evidence which of them was apparently armed with a knife and who had said, “put the knife down.”[4] T270. Another neighbour, Rodney Goslin, gave evidence that he had heard the applicant frequently say words to the effect, “if you take the first swing, you’re gone”, or “come and take the first swing and I’ve got ya, self-defence.”[5][5] T327, 361, 366. Mr Goslin said he knew the applicant’s voice.[6] He had heard him out the front of his home speaking with a very loud voice, continually, using bad language.[7] Mr Goslin spoke about prior altercations he had witnessed between the applicant and the deceased.[8] He described their interactions or relationship as, “a bit of grief.” He said, “Every time Danny [the deceased] showed up, Michael [the applicant] wasn’t too happy”, that he would “get stuck in with the verbal … abuse.”[9] He recalls he would shout things like “rock spider”, “paedophile” and “murderer”.[10][6] T317.[7] T362.[8] T319.[9] T319.[10] T319.

Decision

Reasons for decision

I reject the third limb.Conclusion I would grant permission to appeal but dismiss the appeal. PARKER J: I would grant permission to appeal but dismiss the appeal. I agree with the reasons of Stanley J. DOYLE J: I agree with the reasons of Stanley J. I would grant the application for permission to appeal, but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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