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Court of Criminal Appeal 3 December 2004

Regina v Smit & Ors

[2004] NSWCCA 409

Homicide
CRIMINAL LAW: MURDER CONVICTIONS JURY QUESTION AS TO MANSLAUGHTER NEED FOR STOKES V GIFFORD DIRECTION WERE SEPARATE TRIALS REQUIRED INCORRECT SUBMISSION BY CROWN DIRECTION REQUIRED

Citation: Regina v Smit & Ors [2004] NSWCCA 409
Court: New South Wales Court of Criminal Appeal
Date: 3 December 2004
Judge(s): Grove J (with James J and Hoeben J agreeing)

Background

Three appellants, two of whom were a married couple and the third an associate, were jointly tried before Hulme J and a jury in the Supreme Court on a charge of murdering a man at his Katoomba flat in August 2001. The victim suffered over one hundred injuries, including fatal blunt force trauma to the throat and multiple stab wounds. Each appellant was separately represented at trial and on appeal.

Forensic evidence placed two of the appellants at the scene: a partial palm print of one appellant was found on a bloodstained knife, and another appellant's palm print was identified on the cricket bat that was wrapped with the body. One appellant gave a video-recorded account to police that the trial court's expert evidence largely contradicted, particularly blood spatter analysis of his clothing. A third appellant initially denied being present at the flat on the relevant night, but her account was challenged by other evidence.

All three were convicted of murder and sentenced. Each appealed against conviction only, raising several grounds including a common challenge to the correctness of the trial judge's directions to the jury.

  • Whether the trial judge's directions to the jury adequately explained the basis on which each accused could be found guilty of murder in circumstances where they may not have been the person who performed the fatal act
  • Whether the jury required a direction in accordance with R v Stokes & Gifford (1991) 51 A Crim R 25, namely that an accused can only be convicted of murder as a participant in a joint criminal enterprise if they were aware that the person who did the act intended to kill or cause grievous bodily harm
  • Whether the jury's question during deliberations about manslaughter was adequately addressed by the trial judge's response
  • Whether the Crown made an incorrect submission to the jury, and if so whether a corrective direction was required
  • Whether a false alibi advanced by one appellant was adequately addressed in the directions on consciousness of guilt
  • Whether separate trials should have been ordered
  • Whether the proviso under s 6(1) of the Criminal Appeal Act 1912 could be applied to preserve the convictions despite the identified misdirections

Decision

The Court of Criminal Appeal identified a common ground that succeeded for all three appellants: the trial judge's directions were deficient in failing to adequately instruct the jury that, before convicting a participant in a joint criminal enterprise of murder, the jury had to be satisfied that the participant was aware that the person performing the fatal act intended to kill or cause grievous bodily harm. This is the direction known as a Stokes & Gifford direction, and its absence was a material error.

The jury's question during deliberations about manslaughter reinforced the significance of this deficiency. The Court found that the inadequacy of the response to that question, in combination with the flawed murder direction, created a real risk that the jury had not applied the correct legal test when determining each appellant's individual culpability.

The Court also considered, in the context of the individual appeals, a Crown submission that was found to have been incorrect, the adequacy of directions on consciousness of guilt arising from a false alibi, and arguments about whether separate trials should have been ordered.

On the question of whether the proviso under s 6(1) of the Criminal Appeal Act 1912 should be applied to sustain the convictions despite the errors, the Court declined to do so. Because the evidence did not precisely establish the individual role each accused played in the killing, the Court was not satisfied that a properly instructed jury applying the correct onus and standard of proof would inevitably have convicted each appellant of murder. The Court applied the test from Wilde v The Queen (1998) 164 CLR 365 in reaching that conclusion.

Orders Made

  • In each appeal: appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • A conviction for murder under a joint criminal enterprise theory requires the jury to be properly directed that each accused, to be guilty of murder rather than a lesser offence, must have been aware that the person who performed the fatal act intended to kill or cause grievous bodily harm. This is the Stokes & Gifford principle.

  • Where the Crown case does not precisely establish the individual role of each accused in a killing, the proviso under s 6(1) of the Criminal Appeal Act 1912 will not readily be applied to preserve a conviction obtained after a misdirection. The Court of Criminal Appeal confirmed that the test is whether an appropriately instructed jury, acting reasonably, would inevitably have convicted.

  • A jury question during deliberations on an issue (here, manslaughter) can illuminate the significance of a deficient direction given at trial, supporting a finding that the error was not harmless.

  • Powerful incriminating evidence against an accused, such as forensic palm print and blood spatter analysis, does not automatically justify applying the proviso if the legal directions on the basis of liability were inadequate and individual culpability remained imprecise.

  • Directing a jury on consciousness of guilt arising from a false alibi requires the jury to be told how it may use that evidence. Identifying the evidence without providing a framework for its use is an insufficient direction.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases
- R v Stokes & Gifford (1991) 51 A Crim R 25
- Wilde v The Queen (1998) 164 CLR 365
- Palmer v The Queen (1998) 193 CLR 1
- Webb & Anor v The Queen (1993) 181 CLR 41
- Edwards v The Queen (1993) 178 CLR 193
- Pemble v The Queen (1971) 124 CLR 107
- Shepherd v The Queen (1990) 170 CLR 573
- R v Chami and Sheikh (2002) 128 A Crim R 428
- R v Skaf & Ors [2004] NSWCCA 74
- R v Fernando & Anor [1999] NSWCCA 96
- R v E (1996) 39 NSWLR 450
- Apted v The Queen (1981) 5 A Crim R 141
- R v Harrol (1996) 2 Cr App R 457
- R v Baartman (unreported, NSWCCA, 6 October 1994)
- R v Black (unreported, NSWCCA, 17 February 1992)
- R v Middis (unreported, NSWSC, 27 March 1991)