Scott Alexander McDougall v The Queen - [2013] ACTCA 14

SCOTT ALEXANDER MCDOUGALL v THE QUEEN
[2013] ACTCA 14 (25 March 2013)

APPEAL AND NEW TRIAL – Appeal against conviction by single judge of ACT Supreme Court – Murder s 12(1) Crimes Act 1900 (ACT) – whether error in trial judge’s finding beyond a reasonable doubt act or acts causing death of deceased not in self defence –whether error in addressing pathologist’s evidence of cause of death –Royall v The Queen (1991) 172 CLR 378 –actions after constituted a substantial or significant contribution to the death of the deceased – trial judge entitled on evidence to find acts not in self defence – appeal against conviction dismissed

APPEAL AND NEW TRIAL – Appeal against conviction by single judge of ACT Supreme Court – Murder s 12(1) Crimes Act 1900 (ACT) – whether failure to take into account relevant consideration – no failure to acknowledge intoxication, knowledge of deceased’s violent tendencies and deceased’s possession of weapons – information correctly used as background and state of mind – trial judge entitled to give considerable weight to actions of appellant in the period after he killed deceased in determining the extent of intoxication upon cognitive faculties –appeal against conviction dismissed

APPEAL AND NEW TRIAL – Appeal against conviction by single judge of ACT Supreme Court – Murder s 12(1) Crimes Act 1900 (ACT) – whether failure to give adequate reasons for decision, s 68C(2) Supreme Court Act 1933 (ACT) – no failure in findings of fact and application of law – no failure to avert to subjective elements of self defence test – no error in summary of appellant’s evidence – trial judge’s reasons show clear rejection on the basis of the evidence of other witnesses – trial judge entitled, on witness evidence, to reject the appellant’s evidence of circumstances of deceased’s death – appeal against conviction dismissed

AK v Western Australia (2008) 232 CLR 438
Fleming v The Queen (1998) 197 CLR 205

R v Scott Alexander McDougall [2011] ACTSC 51
Royall v The Queen (1991) 172 CLR 378
Zecevic v Director of Public Prosecutions (1978) 162 CLR 645

Crimes Act 1900 (ACT), s 12 (1)
Criminal Procedure Act (WA), s 120 (2)
Supreme Court Act1933 (ACT), s 68C (2)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 45 - 2011
No. SCC 293 of 2009
No. SCC 317 of 2009

Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 25 March 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 45 - 2011
  )          No. SCC 293 of 2009
  )          No. SCC 317 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SCOTT ALEXANDER MCDOUGALL
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Refshauge, Penfold and Burns JJ
Date:  25 March 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction and sentence for 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 Scott Alexander McDougall v The Queen

Details

AGLC: Scott Alexander McDougall v The Queen [2013] ACTCA 14
Case: [2013] ACTCA 14
Decision Date: 25 March 2013

CaseChat Overview and Summary

Scott Alexander McDougall appealed against his conviction for murder by a single judge of the ACT Supreme Court. The appeal concerned the trial judge's findings regarding the acts causing the death of Struan Bolas, specifically whether those acts were committed in self-defence, and the judge's consideration of the pathologist's evidence on the cause of death. A further ground of appeal related to the trial judge's alleged failure to take into account relevant considerations, including the appellant's intoxication, his knowledge of the deceased's violent tendencies, and the deceased's possession of weapons. Finally, the appellant argued that the trial judge failed to provide adequate reasons for the decision, contrary to s 68C(2) of the *Supreme Court Act 1933* (ACT).

The Court of Appeal was required to determine whether the trial judge erred in finding, beyond reasonable doubt, that the acts causing the death of Struan Bolas were not committed in self-defence. This involved assessing whether the appellant's actions after the killing constituted a substantial or significant contribution to the death, as per the principles in *Royall v The Queen*. The court also had to consider whether the trial judge correctly addressed the pathologist's evidence concerning the cause of death. Furthermore, the appeal required the court to examine whether the trial judge failed to acknowledge or correctly utilise information regarding the appellant's intoxication, his awareness of the deceased's propensity for violence, and the presence of weapons, and whether this information was appropriately considered as background and relevant to the appellant's state of mind. Lastly, the court had to determine if the trial judge's reasons for judgment were adequate, specifically concerning findings of fact, the application of the law, and the subjective elements of the self-defence test.

The Court of Appeal found no error in the trial judge's determination that the acts causing death were not in self-defence, holding that the judge was entitled on the evidence to reach this conclusion. The court also found that the trial judge correctly considered the pathologist's evidence and that the appellant's actions after the killing were a substantial and significant contribution to the death. Regarding the alleged failure to consider relevant factors, the court held that the trial judge did not fail to acknowledge intoxication, knowledge of the deceased's violent tendencies, or the deceased's possession of weapons, and that this information was correctly used as background and to assess the appellant's state of mind. The court further determined that the trial judge was entitled to give considerable weight to the appellant's post-offence conduct in assessing the impact of intoxication on his cognitive faculties. Finally, the court concluded that the trial judge provided adequate reasons for the decision, demonstrating a clear rejection of the appellant's account based on the evidence of other witnesses, and was entitled to reject the appellant's evidence regarding the circumstances of the death. Consequently, the appeals against conviction and sentence for the murder of Struan Bolas, and the appeal against sentence for the murder of Julie Tattersall, were dismissed.

Orders

Orders of the court

1. The appeal against conviction and sentence for the murder of Struan Bolas is dismissed.

2. The appeal against sentence for the murder of Julie Tattersall is 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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