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Robertson v The King

Robertson v The King

Case [2024] NSWCCA 99 3 July 2024

Appeal

Statutory Interpretation

Excessive Self-Defence

Breach of Contract

Compensatory Damages

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Robertson v R [2024] NSWCCA 99
Hearing dates: 18 March 2024
Date of orders: 03 July 2024
Decision date: 03 July 2024
Before: Harrison CJ at CL at [1];
Cavanagh J at [35];
Dhanji J at [116]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the conviction.
(4)   Order that there be a new trial.
(5)   Direct that the proceedings be listed for mention in the Supreme Court Arraignment List on 2 August 2024.

Catchwords:
CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice
CRIME – appeals – statutory interpretation – excessive self-defence – meaning of “force that involves the infliction of death” in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death

Legislation Cited:
Crimes Act1900 (NSW), ss 418, 421

Cases Cited:
Batak v R [2024] NSWCCA 66
Beavan v The Queen (1954) 92 CLR 660; [1954] HCA 41
Clayton v The Queen [2006] HCA 58; 81 ALJR 439
Coskun v R [2024] NSWCCA 67
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Huynh v The Queen [2013] HCA 6; 87 ALJR 434
IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
James v The Queen (2014) 253 CLR 475; [2014] HCA 6
Johns v The Queen (1980) 143 CLR 108; [1980] HCA 3
Lane v The Queen (2013) 241 A Crim R 321; [2013] NSWCCA 317
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
McEwan v R (2013) 41 VR 330; [2013] VSCA 329
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20
R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246
R v Crane & Ors (Trial Ruling No 10) [2022] NSWSC 1227
R v…

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 Robertson v The King

Details

AGLC: Robertson v The King [2024] NSWCCA 99
Case: [2024] NSWCCA 99
Decision Date: 03 July 2024

CaseChat Overview and Summary

The applicant, Robertson, sought leave to appeal against his conviction of murder, arguing that the trial judge's failure to leave the alternative verdict of manslaughter based on excessive self-defence to the jury caused a substantial miscarriage of justice. Robertson pleaded guilty to manslaughter but not guilty to murder before the jury, and was convicted of murder as part of a joint or extended joint criminal enterprise. The trial judge ruled that the partial defence of excessive self-defence was not available to Robertson, as he had not led evidence proving that he had not used force that involved the infliction of death. The court was required to determine whether the failure to leave excessive self-defence to the jury caused a miscarriage of justice, and whether the evidence was capable of supporting an alternative verdict of manslaughter or the formation of a tacit agreement to act in concerted self-defence.

The court held that the trial judge's failure to leave excessive self-defence to the jury did not cause a substantial miscarriage of justice, as the evidence was not capable of supporting an alternative verdict of manslaughter. The court held that the distinction between the use of force that involves the infliction of death and force that causes death is significant, as it is necessary to prove that the accused did not use force that involved the infliction of death in order to raise the partial defence. The court held that there was no evidence capable of supporting the formation of a tacit agreement to act in concerted self-defence, as there was no evidence of a common purpose or agreement to use force in self-defence. The court held that the applicant's guilty plea to manslaughter was inconsistent with the partial defence of excessive self-defence, as it was an admission that he had used force that involved the infliction of death.

The court dismissed the application for leave to appeal. The court held that the evidence was not capable of supporting an alternative verdict of manslaughter or the formation of a tacit agreement to act in concerted self-defence. The court held that the applicant's guilty plea to manslaughter was inconsistent with the partial defence of excessive self-defence, and that the trial judge's failure to leave excessive self-defence to the jury did not cause a substantial miscarriage of justice. The court held that the distinction between the use of force that involves the infliction of death and force that causes death is significant, and that it is necessary to prove that the accused did not use force that involved the infliction of death in order to raise the partial defence. The applicant's conviction of murder was upheld.

Orders