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Court of Criminal Appeal 21 September 1999

REGINA v. SANCAR

[1999] NSWCCA 284

Homicide
MURDER INTENT SELF DEFENCE NO PRACTICAL ISSUE ON INTENT NO NECESSITY TO LEAVE MANSLAUGHTER

Citation: [1999] NSWCCA 284
Court: Court of Criminal Appeal, New South Wales
Date: 21 September 1999
Judge(s): Spigelman CJ, Greg James J, Smart AJ

Background

The appellant was convicted by jury of the murder of a fellow inmate at Junee Correctional Centre on 10 May 1994. The killing occurred during a confrontation in a prison walkway, where the appellant stabbed the deceased twice in the chest with a homemade dagger fashioned from a pair of scissors. Both wounds were potentially fatal, and the deceased died within minutes.

The background to the confrontation involved drug-related animosity between the appellant and another inmate, Timothy Orr. At a prior trial, which resulted in a hung jury, the appellant gave evidence that he had acted with his "life pending." That earlier evidence was read to the jury at the retrial. The appellant did not dispute that he intended to cause at least serious bodily harm.

At trial, defence counsel ran the case entirely on the basis that the appellant was acting in self-defence, rather than contesting intent. The jury deliberated for approximately one day before returning a guilty verdict.

  • Whether the trial judge erred by failing to leave an alternative verdict of manslaughter to the jury, given the evidence on intent
  • Whether the trial judge's directions on intent were adequate and appropriate in the circumstances
  • Whether the trial judge erred in giving a Black v The Queen direction (a direction to a deadlocked jury to continue deliberating) after the jury indicated it could not agree

Decision

On the failure to leave manslaughter: The Court found there was no practical issue on intent in this case. The appellant's own evidence, given at the prior trial and read to the jury at retrial, included an admission that he knew the stabbing would cause serious bodily harm, and an acknowledgment that he was prepared to take the chance it might cause death. In those circumstances, the trial judge was not required to leave manslaughter as an alternative verdict.

On the directions regarding intent: The directions given by the trial judge were found to be appropriate having regard to the facts of the case and the way in which it was conducted by counsel. The defence had not objected to the relevant portions of the summing-up, and the Court accepted that leave to appeal was technically required. Nevertheless, the Court granted leave and examined the grounds on their merits, finding no error in the judge's approach.

On the Black direction: After the jury sent a note stating it could not agree and that this position was final, the trial judge gave a direction pursuant to Black v The Queen (1993) 179 CLR 44, which instructs jurors that they should each approach the question of unanimity with an open mind while preserving their genuine views. The Court found this was the correct course. The trial was in its fourth week, and the jury had deliberated for only about one day. The jury returned a verdict approximately one hour and forty-five minutes after receiving the direction. The Court held there was no undue haste and no basis to disturb the judge's discretion.

All three grounds of appeal failed, and the appeal against conviction was dismissed.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • Where an accused's own evidence effectively concedes the intent required for murder, there may be no practical issue on intent for the jury to resolve, and no necessity arises to leave manslaughter as an alternative verdict.
  • A trial judge retains a duty to leave relevant defences raised on the evidence to the jury notwithstanding a tactical course adopted by trial counsel, as confirmed in Pemble v The Queen (1971) 124 CLR 107. However, that duty does not extend to directing on alternatives where the evidence does not genuinely raise them.
  • In dismissing the appeal, the Court confirmed that a Black direction is appropriate even where a jury has stated in firm terms that it cannot agree, provided the period of deliberation has not been excessive relative to the complexity and length of the trial.
  • No error arose from the absence of objection by experienced defence counsel to the summing-up, because leave was granted and the substance of the grounds was examined. An accused is not necessarily denied appellate relief solely because trial counsel made no objection, unless the matter was a deliberate tactical decision.
  • Sufficient evidence of intent existed on the facts here, including the appellant's cross-examination admissions and the nature of the weapon and wounds, to sustain the murder conviction without the need for any extended directions on lesser alternatives.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pemble v The Queen (1971) 124 CLR 107
- Black v The Queen (1993) 179 CLR 44
- Zecevic v DPP (Vic) (1987) 162 CLR 645
- Viro v The Queen (1978) 141 CLR 88
- Crabbe (1985) 156 CLR 464
- Cutter (1997) 143 ALR 498
- Fleming (1998) 158 ALR 379
- Hawkins (1994) 179 CLR 500
- Tangye (1997) 92 A Crim R 545
- Wilson (1997) QCA 244
- Parker (1963) 111 CLR 610
- Woolin [1999] 1 Cr App R 8
- Hancock [1986] 1 AC 455
- DPP v Smith [1961] AC 790
- Pantoja (CCA, unreported, 5 November 1998)
- McKnoulty (1995) 77 A Crim R 333
- Baretto (CCA, unreported, 29 September 1993)