R v TAZ; R v SED - [2023] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

R v TAZ; R v SED [2023] QCA 137

PARTIES:

In CA No 128 of 2022:

R
v
TAZ
(appellant)

In CA No 129 of 2022:

R
v
SED
(appellant)

FILE NO/S:

CA No 128 of 2022
CA No 129 of 2022
SC No 1731 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Convictions: 16 June 2022 (Jackson J)

DELIVERED ON:

Date of Orders: 7 July 2023
Date of Publication of Reasons: 11 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2023

JUDGES:

Bond and Dalton and Boddice JJA

ORDERS:

Date of Orders: 7 July 2023

In CA No 128 of 2022:

1.   Appeal allowed.

2.   Verdict set aside.

3.   Retrial ordered.

In CA No 129 of 2022:

1.   Appeal allowed.

2.   Verdict set aside.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where both appellants were convicted by jury of murder – where the Crown relied on oral evidence from various witnesses to the relevant events leading up to and including the infliction of the fatal wound, and the aftermath – where the reliability of those witnesses was called into question by inconsistencies in those accounts and concessions made in cross-examination – where that evidence had to be viewed in the context of the CCTV footage of the relevant events – whether the inconsistencies and concessions of the various witnesses rendered the Crown case, as a whole, unreliable – whether the verdicts of guilty were unreasonable or could not be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION AND NON-DIRECTION – where the trial judge gave directions in respect of post-offence conduct – where, in the course of those directions, the trial judge referred to the non-recovery of the relevant knife used to stab the deceased and flight, in circumstances where the Crown did not rely upon either fact as evidence of post-offence conduct – where the trial judge directed the jury first as to the matters about which they needed to be satisfied before using flight as post-offence conduct – where the trial judge then directed the jury that flight was too unclear or equivocal to be used to infer that the appellant who inflicted the fatal wound had the intention to do grievous bodily harm as it related to the murder charge – where the trial judge then directed the jury that they could use the evidence of flight in considering self-defence issues but did not explain to the jury how that evidence was relevant to other questions of self-defence – where the trial judge omitted to refer to the post-offence conduct of alleged slapping of hands by the appellants immediately after the stabbing, which was in factual dispute and formed a central part of the Crown case –…

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

Case: [2023] QCA 137
Decision Date: 7 July 2023

CaseChat Overview and Summary

The appellants, TAZ and SED, were convicted by a jury of the murder of a deceased individual. The convictions were challenged on appeal. The primary focus of the appeal was whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence presented. The Crown's case relied heavily on oral testimony from various witnesses, which was inconsistent and had certain concessions made during cross-examination. This evidence had to be considered alongside the available CCTV footage of the relevant events. The appeal raised concerns about the reliability of the Crown's evidence, particularly in light of the discrepancies among the witnesses' accounts and the concessions made during their testimonies. The reliability of the Crown's evidence had to be assessed in the context of the CCTV footage, which provided a visual record of the events leading up to and including the fatal injury.

The court examined whether the inconsistencies and concessions in the witnesses' testimonies rendered the Crown's case unreliable as a whole. The court considered whether the jury's verdicts of guilt were unreasonable or could not be supported by the evidence, particularly when viewed in conjunction with the CCTV footage. The appeal also addressed issues related to the trial judge's directions to the jury regarding post-offence conduct. The judge's directions were found to be inconsistent and potentially confusing, particularly concerning the non-recovery of the knife used in the stabbing and the appellants' flight from the scene. The judge's directions did not adequately explain how the evidence of flight was relevant to the self-defence issues, and the omission of the alleged slapping of hands by the appellants immediately after the stabbing was noted as a significant oversight. The court concluded that these directions were likely to mislead the jury and that the appellants did not receive a fair trial due to these misdirections.

The court found that the jury's verdicts were unreasonable or could not be supported by the evidence. The appeal was allowed, and the verdicts were set aside. A retrial was ordered for both appellants. The orders were made on 7 July 2023, with the appeals in CA No 128 of 2022 and CA No 129 of 2022 being allowed, the verdicts set aside, and retrials ordered for both TAZ and SED.

Orders

Orders of the court

Date of Orders: 7 July 2023

In CA No 128 of 2022:

1. Appeal allowed.

2. Verdict set aside.

3. Retrial ordered.

In CA No 129 of 2022:

1. Appeal allowed.

2. Verdict set aside.

3. Retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As in many cases where there is extensive CCTV footage, one assumes that a jury acting rationally would prefer that evidence, where it is clear enough, to conflicting oral accounts. In this case that took on a particular focus, as some of the witnesses (properly) called by the prosecution were witnesses which the Crown submitted to the jury were not impressive, and others were young. Against that background I turn to the oral evidence in the case.The Oral Evidence NH gave evidence that at the time of the killing he was 17 years old and knew the appellants. On the evening of the killing he was at home and TAZ called him and said there were some kids at the skatepark selling marijuana. That caused NH to go to the skatepark and buy some of the marijuana so that he could give it to TAZ. The background to that was that he “owed” TAZ seven grams of cannabis. NH took $25 to the skatepark and gave it to SED. SED paid SJ and received the marijuana. He and the two appellants went into the toilet to weight it. It was NH’s idea to weigh it; that was something he routinely did. He thought the cannabis looked “pretty bad at the start” – t 2–63, but then it weighed up properly. He could not recall whether there was any discussion with the appellants about his view that he thought the drug looked pretty bad, or underweight, before he weighed it up. He thought that SED left the toilet before he finished weighing it up. It weighed at 1.8 grams, slightly more than had been promised; this was not challenged. The necessary implication from his evidence is that at some point both the appellants left him in the toilet with the marijuana. He continued to weigh the marijuana and by the time he left the toilet block “everybody was gone” – t 2–53. He sat on a seat outside the toilet block, and four or five minutes later he heard yelling in the distance and one voice saying, “Come on cunt”. He also heard a voice saying, “We can give you the money back”. He attributed the last comment to one of the group who had sold the marijuana. As to the first comment he agreed he was familiar with both appellants’ voices and he could not say that he recognised the voice. He agreed with the proposition that therefore, it was fair to say it was not one of the appellant’s voices – t 2–66. When he heard yelling in the distance he rode his bicycle towards the noise. He got to a point where he could see someone lying on the ground and a group of people standing around that person. The appellants were both running from that scene towards him. He rode his bike with the appellants as they kept running away. At some point they stopped and TAZ said, “I stabbed him” two or three times. SED asked for the marijuana which had been bought and NH gave it to him. SED snatched it off him because he was in a hurry and they both rode off away from NH – t 2–56. ST gave evidence that she was with SJ and Angus Beaumont that night. All three of them had smoked marijuana earlier that evening. She was SJ’s girlfriend and knew he had marijuana in his bag. She assumed he had knives in his bag as he habitually did. She knew that there was an arrangement between the appellants and SJ to buy marijuana but she did not see the transaction take place.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v TAZ; R v SED [2023] QCA 137
PARTIES:	In CA No 128 of 2022: R v TAZ (appellant) In CA No 129 of 2022: R v SED (appellant)
FILE NO/S:	CA No 128 of 2022 CA No 129 of 2022 SC No 1731 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Convictions: 16 June 2022 (Jackson J)
DELIVERED ON:	Date of Orders: 7 July 2023 Date of Publication of Reasons: 11 July 2023
DELIVERED AT:	Brisbane
HEARING DATE:	5 May 2023
JUDGES:	Bond and Dalton and Boddice JJA
ORDERS:	Date of Orders: 7 July 2023 In CA No 128 of 2022: 1. Appeal allowed. 2. Verdict set aside. 3. Retrial ordered. In CA No 129 of 2022: 1. Appeal allowed. 2. Verdict set aside. 3. Retrial ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where both appellants were convicted by jury of murder – where the Crown relied on oral evidence from various witnesses to the relevant events leading up to and including the infliction of the fatal wound, and the aftermath – where the reliability of those witnesses was called into question by inconsistencies in those accounts and concessions made in cross-examination – where that evidence had to be viewed in the context of the CCTV footage of the relevant events – whether the inconsistencies and concessions of the various witnesses rendered the Crown case, as a whole, unreliable – whether the verdicts of guilty were unreasonable or could not be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION AND NON-DIRECTION – where the trial judge gave directions in respect of post-offence conduct – where, in the course of those directions, the trial judge referred to the non-recovery of the relevant knife used to stab the deceased and flight, in circumstances where the Crown did not rely upon either fact as evidence of post-offence conduct – where the trial judge directed the jury first as to the matters about which they needed to be satisfied before using flight as post-offence conduct – where the trial judge then directed the jury that flight was too unclear or equivocal to be used to infer that the appellant who inflicted the fatal wound had the intention to do grievous bodily harm as it related to the murder charge – where the trial judge then directed the jury that they could use the evidence of flight in considering self-defence issues but did not explain to the jury how that evidence was relevant to other questions of self-defence – where the trial judge omitted to refer to the post-offence conduct of alleged slapping of hands by the appellants immediately after the stabbing, which was in factual dispute and formed a central part of the Crown case –…