R v Murray

Case [2018] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

R v Murray [2018] QCA 57

PARTIES:

R
v
MURRAY, Hamish Stewart
(appellant)

FILE NO/S:

CA No 103 of 2017
SC No 34 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 20 April 2017 (Henry J)

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2018

JUDGES:

Morrison and Philippides JJA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was charged with one count of murder and manslaughter in the alternative – where the appellant was found guilty of murder – where the trial judge left the defence of compulsion for the jury’s consideration for the charge of murder and the alternative charge of manslaughter – whether it was a misdirection to leave the defence of compulsion to the jury for the charge of murder and the alternative charge of manslaughter – where trial counsel could not identify any disadvantage to the appellant in leaving the defence of compulsion to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed the jury that for the defences of self-defence, compulsion and accident to apply, the jury must accept the appellant’s account as true or possibly true –whether it was a misdirection to tell the jury that they must accept the appellant’s account as true or possibly true having the result that the jury were not able to engage in their crucial role of making their own determination of the facts

Criminal Code (Qld), s 31

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, considered
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26, considered
Pickering v The Queen (2017) 91 ALJR 590; [2017] HCA 17, considered
R v Murray[2016] QCA 342, cited
R v Pickering[2016] QCA 124, considered
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25, cited
Stevens v The Queen (2005) 227 CLR 319; [2005] HCA 65, considered
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

A Edwards for the appellant (pro bono)
D C Boyle for the respondent

SOLICITORS:

Lucas Chambers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I agree with the reasons of Philippides JA and the order her Honour proposes.

  2. PHILIPPIDES JA:  On 20 April 2017, after a six day trial,[1] the appellant was convicted of one count of murder.  The appellant appeals that conviction on the grounds that the trial judge:

    1.erred in giving truncated and inadequate directions as to s 31 of the Criminal Code Act 1899 (Qld) (the…

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R v Murray [2018] QCA 57
Case
[2018] QCA 57
Decision Date

CaseChat Overview and Summary

The appellant, Murray, was convicted of murder and was granted leave to appeal against the conviction. The appeal centred on two main grounds: first, that the trial judge misdirected the jury by allowing them to consider the defence of compulsion for both murder and manslaughter charges; second, that the trial judge misdirected the jury by requiring them to accept the appellant's account as true or possibly true for the defences of self-defence, compulsion, and accident. The court had to determine whether these alleged misdirections amounted to a miscarriage of justice that warranted a new trial.

The court found that the trial judge's direction regarding the defence of compulsion was not erroneous. The defence of compulsion could only arise from the appellant's evidence, and the trial judge properly instructed the jury to consider the appellant's account in the context of these defences. The court also concluded that there was no error in the trial judge's direction that the jury had to accept the appellant's account as true or possibly true for the defences to apply. This direction did not prevent the jury from making their own determination of the facts, as it was clear that the defences rested solely on the appellant's evidence.

Based on the court's reasoning, the appeal was dismissed. The misdirections, if any, did not result in a miscarriage of justice that would warrant a new trial. The evidence presented, including the forensic evidence and the appellant's testimony, did not establish a reasonable doubt as to the appellant's guilt beyond a reasonable doubt. The jury's verdict was upheld, and the appellant's conviction for murder remained intact.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Sergeant Leslie Walker gave evidence of a forensic examination of the downstairs of the house which revealed blood staining, including projected blood, on the walls. There was evidence of a clean up. Swabs of the appellant’s car found the deceased’s blood on the back of the seat directly behind the driver’s seat. Disposable gloves were found at the Hartley Street residence. Property belonging to the deceased located there included two syringes. She also located the remnants of some furniture at a bush location near Taylor Point Lookout, including the remains of mattresses and recliner chairs down a cliff face.The appellant’s evidence The appellant gave evidence that he met the deceased in late 2011 and assisted him with finding work and that the deceased had stayed with him for a short time. He gave evidence that the deceased texted him again in late 2012. The appellant gave evidence of going on the trip to Mareeba. His evidence, however, was that he was going for a swim and that it was Ms Peckham and the deceased who were there to sell drugs. The appellant gave evidence of speaking with the deceased on the Sunday night but said that there was no unpleasantness involved; the deceased was simply asking him if there was any work. He denied any text communication and conversations with Ms Peckham about any text messages. The appellant accepted he was a user of methylamphetamine, but denied using drugs or staying up all night the night before the killing. The appellant said the purpose of the trip to Ms Peckham’s house on the Wednesday was in response to Ms Peckham asking for a lift home and that it was an opportunity for him to get a mini motorcycle, in which he had some interest, from her house. The appellant said the money he gave to Ms Peckham at the service station was payment for the motorcycle. He denied parking around the corner or telling Ms Peckham to get the boys out of the house. He said that he reversed straight up to the residence at Hartley Street to pick up the motorcycle. The appellant said that, when he went inside, he saw the deceased in the kitchen in the process of injecting drugs. He told the deceased he was looking for the motorbike and that Ms Peckham was not happy with the deceased being there. He said he could see that the deceased had an immediate reaction to the drugs. The deceased became belligerent and aggressive in response to the appellant’s remarks. He attacked the appellant, punching him in the sternum and winding him. The deceased then grabbed the appellant in a choke hold until the appellant lost consciousness. When the appellant came to, he was on the floor. The appellant said he started to get up, but the deceased put his knee in the appellant’s chest, keeping him down and then held the appellant down. The appellant said the deceased began to choke the appellant with both hands and that he was suffocating and could not free himself. The appellant saw a hammer on the ground nearby and hit the deceased in the head with the side of the hammer head. He said that that seemed to enrage the deceased even more and that the deceased choked him harder, even though blood was coming out of the side of the deceased’s head. The appellant said that “[o]ut of desperation” he struck the deceased again with the hammer as “hard as [he] could”. He said that he hit the deceased on each occasion to save his own life. The second blow seemed to stun the deceased. At that stage, the deceased released his grip and stood up bleeding profusely. The appellant then stood up and dropped the hammer, backing away from the deceased.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In those circumstances, it was contended that the misdirection caused a substantial miscarriage of justice in that the appellant thus lost a real chance of an acquittal.[7] It was not possible to conclude that “on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty”.[8] This was said to be particularly so in the present case, where there is the natural limitation on this Court in not having seen the appellant or Ms Peckham give evidence.[9] Accordingly, it was submitted that the verdict should be quashed and a retrial ordered.[7]TKWJ v The Queen (2002) 212 CLR 124 at [65]-[68].[8]Simic v The Queen (1980) 144 CLR 319 at 331 referring to R v Cohen and Bateman (1909) 2 Cr App R 197 at 207.[9]R v Murray [2016] QCA 342 at [39] per McMurdo JA.Consideration The appellant’s contention that the trial judge misdirected the jury is unfounded. In the general directions, the jury were correctly directed as to the burden and standard of proof. The oral and written directions made it clear that the Crown was required to prove each element of the offence and to negate any defence beyond a reasonable doubt. There is no complaint made by the appellant in that regard. The appellant acknowledged that the trial judge gave the usual, orthodox directions as to Liberato v The Queen,[10] and that it was for the jury to accept all, part or none of what a witness said.[10](1985) 159 CLR 507. The difficulty for the appellant in relation to ground 2, is that the directions given as to the appellant’s evidence reflected the fact that the defences could only reasonably arise from the evidence of the appellant; that is, the only basis on which the defences could not be excluded was if the appellant’s evidence was accepted or not able to be rejected. There was no evidence from any of the Crown witnesses which independently established the basis for the applicability of any defence. It may be accepted that there was Crown evidence which supported aspects of the appellant’s case, but it did not independently raise any defence. With that qualification, the relevant defences, as counsel correctly conceded on appeal, rested on the evidence of the appellant, that he was attacked by the deceased and acted in self-defence in the scenario described by him, being accepted as true or possibly true. This was not a case like Stevens or Murray where a part of the appellant’s evidence and a part of the contrary prosecution evidence could be combined by the jury to form a view of the facts whereby a reasonable doubt as to guilt resulted. That reality was reflected in the trial judge prefacing his summing up concerning the matter of the defences by observing:“Can I highlight some general principles and general matters. Firstly, the conversation I’m about to have arises out of the evidence given by [the appellant]. It doesn’t arise by implication from the account of Ms Peckham, which suggests that rather than [the appellant] being attacked, [he], instead assailed a defenceless man in a recliner chair.”