R v Presley

Case [2015] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PRESLEY, MILLER & SMITH

[2015] SASCFC 53

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)

28 April 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - GENERALLY

CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - ADMISSIONS AND CONDUCT OF ACCUSED - LIES, DENIALS ETC

Appeals against convictions.  The appellants and another, Betts, were found guilty by unanimous jury verdicts of the murder of Hall and had either pleaded guilty to or were found guilty of aggravated causing harm with intent to cause harm to King.  The circumstances of the offending were that Betts and Presley had engaged in an altercation with Hall and King at Grant Street in Elizabeth Downs.  They then returned to a nearby property, armed themselves with weapons and, in the company of Miller and Smith, returned to Grant Street to attack Hall and King.  Betts inflicted the fatal stab wound on Hall.  There was direct evidence concerning the two altercations and the conduct of the defendants prior to and following the altercations. 

Whether the Judge’s directions on joint enterprise were inadequate.  Whether the Judge erred in his directions to the jury concerning the elements of murder under the doctrine of extended joint enterprise.  Whether the Judge failed to adequately distinguish between liability for murder by extended joint enterprise and for manslaughter by unlawful and dangerous act.  Whether the Judge gave adequate directions on intoxication.  Whether the Judge’s directions on Presley’s knowledge of the knife used by Betts were inadequate or confusing.    Whether the Judge erred in his direction as to the meaning of grievous bodily harm.  Whether the Judge erred in leaving extended joint enterprise as a basis for liability for murder.  Whether the verdicts were unsafe and unsatisfactory.  Whether the Judge erred by failing to leave an alternative verdict of manslaughter by excessive self defence.    Whether the Judge erred in his directions concerning the lie told by Smith.  Whether the Judge erred in his directions concerning the DNA evidence concerning Smith. 

Held per the Court (dismissing the appeals):

1.  It was not necessary…

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R v Presley, Miller & Smith [2015] SASCFC 53
Case
[2015] SASCFC 53
Decision Date

CaseChat Overview and Summary

The case of R v Presley concerned appeals against convictions for murder. The appellants, Smith and Miller, were jointly tried and convicted of murder. Their appeals raised several grounds, including allegations of misdirection and non-direction by the trial judge, and the contention that the verdicts were unreasonable or unsupported by the evidence.

The primary legal issues before the appellate court were whether the jury directions regarding murder and the alternative verdict of manslaughter were adequate and correct, and whether the evidence presented was sufficient to sustain the jury's guilty verdicts for murder. Specifically, the court had to consider the principles of joint criminal enterprise liability, particularly in relation to the intention to cause grievous bodily harm, and the standard to be applied when assessing whether a verdict is unreasonable or unsupported by the evidence. The court also considered whether the summing up, when viewed as a whole, provided a fair and accurate exposition of the law to the jury.

The court applied established principles regarding joint criminal enterprise liability, drawing on authorities such as R v Bosworth. It reiterated that for liability to be imputed in such circumstances, it must be contemplated that a participant might commit the offence with the necessary intention. This contemplation requires advertence to the possibility of the act being accompanied by the intention to cause grievous bodily harm. Regarding the unreasonableness of the verdict, the court affirmed that an appellant must demonstrate that the jury must have entertained a doubt about guilt, not merely that the evidence was open to criticism or might have precluded satisfaction beyond reasonable doubt. The jury's role as the primary finder of fact, having observed the witnesses, was also given significant weight.

The appeals were dismissed. The court found that there was sufficient evidence to leave it open to the jury to find that Smith was present at the scene and participated in the attack with the necessary intent. The court concluded that the jury's verdicts were not unreasonable and could be supported by the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Bosworth, Duggan J considered the relevant authorities and said:[7]These authorities reflect the rationale for extending liability for the crime of murder in such circumstances. Liability is imputed because the commission of an offence outside the scope of the common purpose is contemplated as a possibility in the carrying out of the enterprise. Contemplation for this purpose requires advertence to the possibility that the actor will carry out the act accompanied by the necessary intention to commit the offence. The intention for murder relevant to this case is the intention to cause grievous bodily harm. It is of significance that in McAuliffe’s case, the court quoted with apparent approval the formula for jury directions suggested by Sir Robin Cooke in the advice prepared by him in Chan Wing-Siu v The Queen:... did the particular accused contemplate that in carrying out a common unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm.If no weapon is involved, the direction may be adapted accordingly, but the requirement for contemplation of the possibility of the act being accompanied by the intention to cause really serious bodily harm would remain.[Footnotes and citations omitted.][7] R v Bosworth, Gibbins, Nance and Richards (2007) 97 SASR 502, [74]-[75].Unreasonable or Cannot be Supported Having Regard to the Evidence - Principles To establish that a verdict is unreasonable, or that it cannot be supported by the evidence, an appellant must do more than establish that the evidence is open to criticism.[8][8] The Queen v Shueard (1972) 4 SASR 36, 39. This Court must consider whether, on the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt of an appellant’s guilt.[9] An appellant must establish that the jury must have entertained a doubt about guilt. It is not sufficient to establish that there was material before the jury which might have been taken by the jury to preclude satisfaction of guilt beyond a reasonable doubt.[10][9] M v The Queen (1994) 181 CLR 487, 492-3.[10] Libke v The Queen (2007) 230 CLR 559, [113]. It is important to recall that the jury is entrusted with the primary responsibility of determining guilt or innocence, and that the jury in making that determination had the benefit of seeing and hearing the witnesses.[11][11] M v The Queen (1994) 181 CLR 487, 492-3.The Relevance of Directions on Manslaughter when the Jury Convicted of Murder Manslaughter by unlawful and dangerous act was left to the jury as an alternative verdict. Smith and Miller contend that the directions with respect to manslaughter were erroneous. First, that unlawful and dangerous act manslaughter was not the only type of manslaughter open on the facts. Second, that the directions that were given contained errors. Each of the specific complaints will be addressed later in these reasons. It is to be noted that the jury found the appellants guilty of murder and were directed to consider that charge first.

Decision

Reasons for decision

The final complaint of counsel for Smith on the appeal was that the verdicts were unreasonable or cannot be supported having regard to the evidence. We have earlier set out the evidence against Smith. In our view, there was sufficient evidence to leave it open to the jury to find that Smith was present at the scene and participated in the attack with the necessary intent. Conclusion We dismiss the appeals.

Ratio Decidendi

Legal Principle Established

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