R v Williams - [2016] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Permission to Appeal)
R v WILLIAMS
[2016] SASC 67
Judgment of The Honourable Justice Vanstone
18 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
Application for an extension of time within which to appeal and for permission to appeal against conviction for murder – application filed some 14 years after conviction – no appeal previously lodged – application to call fresh evidence said to bear on the credibility of an eyewitness to the killing referred to as Ms A – after the trial Ms A diagnosed with post-traumatic stress disorder said to arise from the fact that she saw the deceased, a man known to her, killed or from the sequelae to the killing – whether Ms A was suffering from post-traumatic stress disorder at the time she gave evidence – whether that disorder might have affected her reliability as a witness – whether it is reasonably arguable that the trial miscarried as a result of the defence not being aware of Ms A’s condition – permission also sought on a number of other grounds.
Held: Permission granted to appeal on the basis of the fresh evidence. Question of extension of time within which to appeal referred to the Court of Criminal Appeal. Permission to appeal on the remaining grounds refused.
Summary Offences Act 1953 (SA) s 74D, s 74E; Summary Procedure Act 1921 (SA) s 104, referred to.
Jago v District Court of NSW (1989) 168 CLR 23; Nudd v The Queen (2006) 80 ALJR 614; Question of Law Reserved (No 3 of 1997) (1997) 70 SASR 555; R v Hickey [1997] EWCA Crim 2028; R v Mohi (2000) 78 SASR 55; TKWJ v The Queen (2002) 212 CLR 124, considered.

R v WILLIAMS
[2016] SASC 67
Criminal: Application for Permission to Appeal

VANSTONE J: The applicant, Brett Stuart Williams, applies for an extension of time, of more than 14 years, within which to appeal against his conviction for murder, as well as for permission to appeal.
On 8 December 2000, the applicant was found guilty by a jury of murdering Phillip John Paul McCormack (“the deceased”) at Morphett Vale. He was later sentenced by Martin J to imprisonment for life, with a non-parole period of 18 years.
On 14 July 2015, the applicant filed a notice of appeal against conviction. This is his first appeal. Although the applicant takes 15 grounds, he maintains that the “primary basis” for the application is found in fresh evidence he presents.
Background
The applicant was jointly charged with one, Lawrence Hersbach. The prosecution case depended on the evidence of a woman who was known to the applicant. I propose to refer to her as Ms A, since her name was suppressed from publication at the time of the trial. The prosecution alleged the applicant and Hersbach reached an understanding that, together, they would kill the deceased, and that they…

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 Williams

Details

AGLC: R v Williams [2016] SASC 67
Case: [2016] SASC 67
Decision Date: 18 May 2016

CaseChat Overview and Summary

In the matter of R v Williams, the applicant applied for an extension of time within which to appeal his conviction for murder, and for permission to appeal against that conviction. The application was filed some 14 years after the conviction. The applicant had not lodged an appeal previously. The application to call fresh evidence related to the credibility of Ms A, an eyewitness to the killing. Ms A had been diagnosed with post-traumatic stress disorder after the trial, which was said to arise from the fact that she saw the deceased killed or from the sequelae to the killing. The applicant argued that Ms A was suffering from post-traumatic stress disorder at the time she gave evidence, and that this disorder may have affected her reliability as a witness. The applicant also sought permission to appeal on a number of other grounds.

The court considered whether it was reasonably arguable that the trial miscarried as a result of the defence not being aware of Ms A’s condition. The court found that the extraordinary lapse of time since the applicant learned about Ms A’s post-traumatic stress disorder – being the period 2001/2002 to July 2015 – could not be readily overlooked. In the event that the applicant’s conviction were to be quashed, there would be no realistic prospect of a re-trial taking place. In those circumstances, the court considered that the question of an extension should be referred to the Court of Criminal Appeal for its decision. Permission to appeal on grounds 1, 2 and 3 was granted, and permission to appeal on grounds 4 to 15 was refused. The application for an extension of time within which to appeal was referred to the Court of Criminal Appeal.

Orders

Orders of the court

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Background

Background to the litigation

On 14 July 2015, the applicant filed a notice of appeal against conviction. This is his first appeal. Although the applicant takes 15 grounds, he maintains that the “primary basis” for the application is found in fresh evidence he presents.Background The applicant was jointly charged with one, Lawrence Hersbach. The prosecution case depended on the evidence of a woman who was known to the applicant. I propose to refer to her as Ms A, since her name was suppressed from publication at the time of the trial. The prosecution alleged the applicant and Hersbach reached an understanding that, together, they would kill the deceased, and that they jointly carried out that plan, beating him to death. The applicant denied the existence of any understanding and said that, in striking the deceased, he acted in self-defence. The applicant claimed that one Raymond Mohi struck the fatal blow to the deceased. Ms A gave evidence that she and another woman (“Amy”) arrived at the applicant’s home on the morning of 30 January 1999 and parked her car in his driveway. The deceased was in the front passenger seat of her car in a drug‑affected state, seemingly unconscious. Ms A told the jury that, prior to this, she had been directed to drive the deceased and two others to various houses. It appeared that the deceased may have committed crimes at some of those places. Ms A told the applicant she was looking for somewhere to leave the deceased, because she wanted to go home. She also told the applicant that the deceased had taken Serapax. Ms A learned that the applicant’s house had been broken into earlier, and that Serapax had been stolen. The applicant implied that the thief was the deceased. Hersbach then arrived at the premises. Ms A gave evidence that later, from within the house, she heard a car door shut. She looked out the window to see that her car had been moved further up the driveway. She saw the applicant and Hersbach standing by the passenger door, the applicant being armed with a camshaft and Hersbach with a hammer. She saw the applicant and Hersbach swing at the deceased as he sat in the car. She looked away. When she looked back she saw the applicant and Hersbach striking the deceased. Ms A further described seeing another car in the driveway with its boot near to the boot of her car. She then saw the applicant and Hersbach put a “silvery blanket” over the deceased, before putting him into the boot of the second car. The applicant and Hersbach both gave evidence to the effect that, in their dealings with the deceased, they were acting in self-defence. The applicant said that Ms A had arrived with the deceased and Amy and had explained that she wanted a place to leave the deceased. Amy left. Mohi arrived after that. Hersbach arrived at around 5.30 am. The applicant and Hersbach went outside to move the deceased to the back porch. Mohi came out a little later and they all moved Ms A’s car so that they did not have to carry the deceased so far. He said that Mohi tried to rouse the deceased. The deceased awakened and “snapped” when he saw Hersbach. He pulled out a gun and said “[y]ou’re dead, fucker” to Hersbach (t/s 1544). He got out of the car. Hersbach took up a hammer that was on the ground. The deceased rushed towards Hersbach and they began wrestling. The applicant then picked up a wheel brace and hit the deceased to the body. Mohi then struck the deceased, who fell to the ground. Mohi then struck the deceased across the bridge of his nose, using a camshaft.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the extraordinary lapse of time since the applicant learned about Ms A’s post-traumatic stress disorder – being the period 2001/2002 to July 2015 – cannot be readily overlooked. In the event that the applicant’s conviction were to be quashed, there would be no realistic prospect of a re-trial taking place. In those circumstances, I consider that the question of an extension should be referred to the Court of Criminal Appeal for its decision.Conclusion For the reasons given, I make the following orders:1. Permission to appeal on grounds 1, 2 and 3 is granted,2. Permission to appeal on grounds 4 to 15 is refused,3.The application for an extension of time within which to appeal is referred to the Court of Criminal Appeal.

Ratio Decidendi

Legal Principle Established

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