Citation: Regina v Katarzynski [2005] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 9 March 2005
Judge(s): Spigelman CJ, Sully J, Kirby J
Background
The appellant was convicted of the murder of Benjamin Hillier, who was shot three times in the early hours of 6 April 2001 outside a hotel in Liverpool, NSW. The incident followed two earlier confrontations inside the hotel, during which the deceased had verbally abused and physically pushed the appellant after taking offence at an indecent comment directed at his aunt. The appellant had consumed a large quantity of alcohol that evening and was carrying a loaded revolver he had purchased earlier that night.
The Crown case was that the appellant lured the deceased to a secluded spot by beckoning to him from the hotel doorway and again from a corner of the car park, before shooting him three times at close range. This account was supported by eyewitness evidence from a hotel bouncer and was partially corroborated by other witnesses.
The appellant gave a different account. He said he was returning to the hotel out of concern for his brother when the deceased suddenly confronted him. He drew the revolver and told the deceased to "fuck off." When the deceased lunged at him, the appellant said he flinched, causing the gun to discharge. He maintained he did not intend to fire or injure the deceased. The jury convicted him of murder, and the trial judge sentenced him to 24 years imprisonment with an 18-year non-parole period. He appealed against both conviction and sentence.
Legal Issues
- Whether the trial judge's directions on the voluntariness of the act of firing the weapon were adequate, including the treatment of the "flinching" account given by the appellant
- Whether the directions on provocation were adequate or otherwise gave rise to a miscarriage of justice
- Whether a third ground of appeal against conviction was made out
- Whether the sentence of 24 years with an 18-year non-parole period was manifestly excessive
Decision
Conviction appeal: voluntariness
The Court examined whether the trial judge's summing-up adequately directed the jury on the issue of whether the firing of the weapon was a deliberate and voluntary act. The appellant argued his "flinching" explanation raised a live issue of involuntariness that was not properly put to the jury. The Court rejected this, finding the judge had correctly directed the jury that if there was a reasonable possibility the act was unintended and involuntary, such as a reflex action, the appellant was not guilty of murder. That direction squarely addressed the issue.
Kirby J observed that, in any event, the "flinching" explanation applied at most to the first shot. The appellant gave uncertain answers about the second and third shots in cross-examination, acknowledging he could not explain those discharges in the same terms. Each shot would have required separate pressure on the trigger. Drawing on Ryan v The Queen and subsequent High Court authority, the Court confirmed that an act is not rendered involuntary simply because it is spontaneous or performed without conscious deliberation, particularly where the actor has placed himself in the circumstances giving rise to the act.
Conviction appeal: provocation and remaining grounds
The Court found no error in the trial judge's directions on provocation. It noted that trial counsel, who was experienced in criminal defence work, had not objected to the summing-up or sought any elaboration. Applying what Sully J described as "Rule 4" (a reference to the principle that an accused should not be permitted to raise on appeal complaints not taken at trial without good reason), the Court found there was no possible miscarriage of justice. The remaining grounds of appeal against conviction were also dismissed.
Sentence appeal
The Court granted leave to appeal against sentence and allowed the appeal, finding the original sentence of 24 years with an 18-year non-parole period was excessive in the circumstances. A revised sentence of 20 years with a 15-year non-parole period was imposed, both commencing on 6 April 2001.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence allowed; sentence imposed at first instance quashed
- Appellant re-sentenced to imprisonment for 20 years commencing 6 April 2001, with a non-parole period of 15 years commencing 6 April 2001 and expiring 5 April 2016, upon which date the appellant is eligible for release to parole
Key Takeaways
- A direction that an act is not voluntary if it was a "reflex action" that was "unintended and involuntary" is sufficient to put the issue of voluntariness to a jury, provided it addresses the substance of the accused's account.
- Where an accused claims involuntariness based on flinching or reflex, that explanation is scrutinised against the entirety of the conduct: a claim that one of three rapidly fired shots was accidental does not extend automatically to the others, each of which required a discrete trigger pull.
- In dismissing the conviction appeal, the Court applied the principle that experienced trial counsel's failure to object to a summing-up or seek further directions carries significant weight against raising those matters on appeal.
- A fully conscious person who places himself in circumstances involving a loaded, ready weapon and then fires in response to a sudden movement is not, on established authority, acting involuntarily merely because the response was rapid or impulsive.
- The Court of Criminal Appeal's resentencing reduced the total head sentence from 24 to 20 years, and the non-parole period from 18 to 15 years, indicating the original sentence was assessed as falling outside an appropriate range for the circumstances.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
Cases
- Royall v The Queen (1990) 172 CLR 376
- Murray v The Queen (2002) 211 CLR 193
- Ryan v The Queen (1967) 121 CLR 205
- La Fontaine v The Queen (1976) 136 CLR 62
- Parker v The Queen (1963) 111 CLR 610
- Reg v Kirkham (1837) 173 ER 422
- Reg v Duffy [1949] 1 All ER 932
- Bratty v Attorney-General for Northern Ireland [1963] AC 386 (referenced in judgment text)