Russell v Tasmania - [2016] TASCCA 23

[2016] TASCCA 23

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Russell v Tasmania [2016] TASCCA 23

PARTIES:  RUSSELL, Stuart Barry
  v
  STATE OF TASMANIA

FILE NO:  1115/2012
DELIVERED ON:  21 December 2016
DELIVERED AT:  Hobart
HEARING DATE:  9 November 2016
JUDGMENT OF:  Blow CJ, Wood and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal dismissed – Evidence not displaying inadequacy or lacking probative force – Murder – Circumstantial evidence – No reasonable hypothesis as to person other than accused inflicting fatal wound.

Smart v Tasmania [2013] TASCCA 15, referred to.
Aust Dig Criminal Law [3476]

REPRESENTATION:

Counsel:
             Applicant:  T Kovacic
             Respondent:  D G Coates SC, A Shand
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 23
Number of paragraphs: 45

Serial No 23/2016
File No 1115/2012

STUART BARRY RUSSELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
ESTCOURT J
21 December 2016

Orders of the Court

Leave to appeal granted.

Appeal dismissed.

Serial No 23/2016
File No 1115/2012

STUART BARRY RUSSELL v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
21 December 2016

This is an application for leave to appeal in respect of a conviction for murder. I have read the judgment of Estcourt J in draft form. I agree with him that leave to appeal should be granted, and that the appeal should be dismissed. I agree with his reasoning. The passages quoted by him from counsels' speeches at the trial, and from the summing-up of the learned trial judge, accurately reflect the evidence that was before the jury.
Only four people were present at Mr Williams' home on the night he was killed – Mr Williams, the applicant, Ms Dallas-Clarke, and Mr Smith. Uncontradicted medical evidence established that Mr Williams suffered four stab wounds, and that the fatal wound was one to the heart. No witness gave evidence of seeing the applicant stab Mr Williams. The Crown case was therefore circumstantial. "Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded": Doney v The Queen (1990) 171 CLR 207 at 211. The hypotheses relied on by the applicant were (i) that Mr Smith might have inflicted the fatal wound; (ii) that, if the applicant inflicted the fatal wound, he might have inflicted it by accident; and (iii) that he might have inflicted the fatal wound in self-defence.
As to self-defence, s 46 of the Criminal Code provides that "A person is justified in using, in the defence of himself …, such force as, in the circumstances as he believes them to be, it is reasonable to use". It is necessary to consider what response on the part of the applicant would have been reasonable if he considered that he was under threat from Mr Williams. As Estcourt J has said, the…

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 Russell v Tasmania

Details

AGLC: Russell v Tasmania [2016] TASCCA 23
Case: [2016] TASCCA 23
Decision Date: 21 December 2016

CaseChat Overview and Summary

The appeal in *Russell v Tasmania* was heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Wood and Estcourt JJ. The appellant, Russell, sought to appeal against his conviction for murder. The prosecution's case was based entirely on circumstantial evidence, and Russell argued that the verdict of guilty was unreasonable or unsupportable having regard to the evidence presented at trial.

The central legal issue before the Full Court was whether the evidence adduced at trial was sufficient to sustain a conviction for murder, or if the verdict was so demonstrably weak that it could not stand. This required the Court to assess the probative force of the circumstantial evidence and determine if it excluded any reasonable hypothesis pointing to the innocence of the accused.

The Court found that the evidence presented at trial, while circumstantial, was not inadequate or lacking in probative force. It was open to the jury to conclude, beyond reasonable doubt, that no person other than the appellant inflicted the fatal wound. The Court was not persuaded that there was any reasonable hypothesis consistent with the appellant's innocence that was not excluded by the evidence. Accordingly, the jury's verdict was deemed reasonable and supportable.

Leave to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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