R v Muir - [2009] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MUIR
[2009] SASC 94
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Layton)
8 April 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction for causing harm with intent to cause harm - misdirections amounted to a miscarriage of justice - appeal allowed.
Defence case was that the appellant had acted in defence of another - Judge gave oral and written directions - both oral and written directions were confusing.
Davies and Cody v The King (1937) 57 CLR 170; Mule v The Queen (2005) 79 ALJR 1573; R v Tulisi [2008] 306, applied.
R v Dunn (2006) 94 SASR 306; R v Jellard [1970] VR 802; R v Petroff (1980) 2 A Crim R 101, discussed.

R v MUIR
[2009] SASC 94
Court of Criminal Appeal: Sulan, Vanstone and Layton JJ

SULAN J: The appellant was charged with aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935, (‘the Act’). The particulars of the offence are that he, together with Michael Adam King and David James Upton, on 1 July 2006 at Hallett Cove caused harm to John Schneebichler, intending to cause Mr Schneebichler harm. The circumstance of aggravation was that, at the time of the offence, the appellant, King and Upton, were in each other’s company. Section 5AA(1)(h) of the Act provides that an aggravated offence includes an offence committed in company with one or more other persons.
The appellant was found not guilty of the offence charged, but guilty of causing harm with intent to cause harm. The maximum penalty for that offence is ten years’ imprisonment.
The charge against the appellant arose out of an incident which occurred on 1 July 2006 after a football match at Hallett Cove. I will deal with the circumstances later in these reasons but, in short, a fight commenced between Mr King and others. The appellant joined in. On his version, he was defending Mr King, and his actions were not unlawful. The appellant pleaded not guilty to the charge. The appellant’s only ground of appeal is that the trial Judge erred in law in his directions regarding self-defence and defence of another. The trial Judge provided the jury with a written memorandum to which they could refer during their deliberations. The appellant’s ground of appeal is that the trial Judge misdirected the jury, both in the oral directions and in the memorandum.
The appellant was sentenced to two years and three months’ imprisonment for the offence. He also acknowledged three breaches of bond, for which he had received suspended sentences of three months, one month and one month imprisonment, respectively. The Judge ordered that the sentences be brought into effect, to be served concurrently, making a total…

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 Muir

Details

AGLC: R v Muir [2009] SASC 94
Case: [2009] SASC 94
Decision Date: 8 April 2009

CaseChat Overview and Summary

The appellant in this case appealed against his conviction for causing harm with intent to cause harm, arguing that the misdirections in the trial amounted to a miscarriage of justice. The appeal was heard by the court, which examined the legal issues raised by the appellant's arguments. The primary legal issue was whether the trial judge's directions to the jury on the concept of lawful justification or excuse in the context of the defence of another person were adequate and correctly framed. The court needed to determine if the misdirections or non-directions by the trial judge led to an unsafe and unsatisfactory verdict.

The court found that both the oral and written directions given by the trial judge were confusing and inadequate. The judge's explanation of the elements of the charge and the concept of lawful justification or excuse was not clear enough for the jury to properly consider the defence's case. The court held that the misdirections amounted to a miscarriage of justice and that the appeal against the conviction should be allowed. Consequently, the conviction and sentence were set aside, and the case was to be retried.

In light of the findings, the court ordered that the conviction and sentence be set aside and that the matter be remitted to the trial court for a new trial. It was not necessary to address the appeal against the sentence, as the conviction had been quashed. This decision highlights the importance of clear and accurate judicial directions to ensure a fair trial and the proper application of the law.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal against conviction is allowed and the conviction and sentence is set aside. It is unnecessary to deal with the appeal against sentence.Background I now turn to the facts. Much of the background facts were not in dispute. There are differences between the accounts of various witnesses who observed the incident, but the circumstances leading to the appellant’s involvement in the incident are uncontroversial. The appellant attended a football match in the company of Mr King and Mr Upton. At the conclusion of the football match, Mr King became involved in a fight with a man named Clint Michael Draper. Punches were thrown. Mr Draper sought refuge in a car. Mr King then used his elbow to smash two of the car windows, as a result of which flying glass injured Mr Draper’s eye and caused injuries to his face. John Schneebichler, the complainant, intervened because his wife and son’s girlfriend were in the car, which was the subject of the attack by Mr King. The two women were terrified by Mr King’s attack upon Mr Draper and upon the car. Mr Schneebichler grabbed Mr King and pulled him away from it. A fight broke out between them. According to Mr Schneebichler, Mr King bit him on the wrist and the face and spat blood into his face. Mr Schneebichler complained that he was then attacked from behind by two other men, being the appellant and Mr Upton, who joined in the fight after Mr King had implored them to become involved. Mr Schneebichler was punched from behind. It was that conduct that was the basis of the Crown allegation against the appellant. The trial Judge summarised the prosecution case as follows:[1]As you also know it is the prosecution case that King was at all times acting aggressively and violently, that John Schneebichler attempted to come to the rescue (of Clint Draper), whereupon King turned on him, attacked him causing some injuries, that the accused joined in after King uttered some words of command or invitation, that from then on the accused and King acted as a team. That from then on each accused punched Schneebichler and in so doing, must have caused some pain to him at the very least. That each of them intended that pain be caused and that they were all doing this together and were thus in company for the purposes of the charge.[1] Appeal Book, 57. The defence case was that the appellant had come to the aid of Mr King, who he believed was being bashed by Mr Schneebichler, and that the appellant did no more than was reasonable and necessary in the defence of another. The trial judge’s direction Early in his charge to the jury, the trial Judge explained to the jury the elements of the charge of aggravated causing harm with intent to cause harm. He explained to the jury that there is a basic offence of causing harm with intent to cause harm, and he then explained to them the circumstance of aggravation in this case, that is, that it was alleged that King, Upton and the appellant were in company at the time of the offence. He explained the elements of the charge and directed the jury that they must be satisfied beyond reasonable doubt in respect of each element of the charge. He directed the jury that the prosecution must prove beyond reasonable doubt that the accused had acted unlawfully. He referred to a central issue in the trial, being the issue of whether the accused acted with lawful justification or excuse. He said:[2]It is for the prosecution to prove that the accused were not in fact acting in lawful defence of King or in Upton’s case himself. Thus, ladies and gentlemen, the issues of defence of another in self-defence fairly and squarely arises on the evidence. You will have to consider those issues, and I suggest that in reality they are the most significant issues which have arisen for your determination. [2] Ibid, 64.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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