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Court of Criminal Appeal 8 August 2014

Matthews v R

[2014] NSWCCA 151

Assault & violenceHomicide
CRIMINAL LAW CONVICTION APPEAL CHARGE OF MURDER TWO MEN INVOLVED IN A STREET FIGHT MURDER CONVICTION SHOULD BE QUASHED

Citation: Matthews v R [2014] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 8 August 2014
Judge(s): Hoeben CJ at CL; Rothman J; Beech-Jones J

Background

The applicant was convicted of murder following a street fight in Darlinghurst in February 2011. During the altercation, he punched the deceased in the head. The deceased, unknown to anyone at the time, had an undiagnosed brain aneurysm that ruptured upon impact, causing a fatal haemorrhage. He died in hospital three days later.

The Crown's case rested heavily on the evidence of a single eyewitness, Anthony Whiting, who had been a close friend of the deceased. Whiting gave evidence that the applicant was the aggressor throughout, attacked the deceased from behind, said "I will kill you" during the fight, and stomped on the deceased's head approximately six times after he fell.

The applicant denied the necessary intent for murder. The defence raised several alternative bases for a manslaughter verdict rather than murder, including self-defence, excessive self-defence, and substantial impairment from post-traumatic stress disorder. The sole ground of the conviction appeal was that the jury's verdict of murder was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict of murder was unreasonable and unable to be supported by the evidence, specifically whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant had the intention to kill or inflict grievous bodily harm on the deceased.
  • Whether the principal Crown witness's account was sufficiently reliable to ground the inference of the requisite murderous intent.
  • Whether, once the unreliable portions of that witness's evidence were set aside, the remaining evidence could establish the intent necessary for murder.

Decision

All three judges agreed the murder conviction could not stand. The court's analysis centred on the reliability of Anthony Whiting's evidence, which formed the foundation of the Crown's case on intent. His account was inconsistent in material respects with the medical evidence from the post-mortem examination and did not accord with the observations of other eyewitnesses present at the scene.

The three specific planks of Whiting's evidence relied upon to establish intent, namely that the applicant attacked from behind, made a death threat, and stomped on the deceased's head six times from a height of approximately two feet, were each scrutinised. The court found the stomping evidence in particular was very difficult or impossible to reconcile with the post-mortem findings. Other eyewitness accounts also did not support Whiting's version of events to the degree required.

Rothman J emphasised that the relevant question was not whether there was evidence from which a conviction was open, but whether the jury ought to have experienced a reasonable doubt, paying appropriate regard to the jury's advantage in seeing and hearing witnesses. Where an appellate court itself experiences a reasonable doubt, that ordinarily reflects a doubt the jury should also have entertained.

Once Whiting's evidence of the death threat and repeated stomping was put to one side, the court found the remaining evidence described a street fight in which neither participant demonstrated an intention to kill or inflict really serious injury. The applicant may bear legal responsibility for the fight and the death, but the evidence could not support the conclusion, beyond reasonable doubt, that he acted with the intent required for murder. A new trial on the lesser charge of manslaughter was ordered.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed and the applicant's conviction for murder quashed.
  • A verdict of acquittal entered in favour of the applicant on the charge of murder.
  • A new trial ordered on the charge of manslaughter.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an appellate court itself experiences a reasonable doubt about a jury's verdict, this ordinarily indicates a doubt the jury also should have experienced, consistent with the High Court's approach in M v The Queen (1994) 181 CLR 487.
  • A murder conviction requires the Crown to prove the requisite intent, namely an intention to kill or inflict grievous bodily harm, beyond reasonable doubt; where the evidence establishing that intent is internally inconsistent and contradicted by medical evidence and other eyewitnesses, the verdict cannot stand.
  • Inconsistency between a witness's account and objective medical or forensic evidence can be sufficient to undermine the reliability of that account to a degree that prevents the jury from drawing the necessary inferences to the requisite standard.
  • Quashing a murder conviction does not automatically result in an acquittal on all charges; the court distinguished between the intent required for murder and the lesser elements of manslaughter, and ordered a new trial on manslaughter rather than entering a full acquittal.
  • The court's task on an unreasonable verdict appeal is not to identify whether some evidence capable of supporting conviction existed, but to assess whether, on the whole of the evidence, the jury ought to have harboured a reasonable doubt.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
- R v Rasic [2009] NSWCCA 202
- Griffiths v R [2014] NSWCCA 60