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Court of Criminal Appeal 7 October 2014

Hoskins v R

[2014] NSWCCA 207

Homicide
CRIMINAL LAW MURDER JOINT CRIMINAL ENTERPRISE APPEAL DISMISSED

Citation: Hoskins v R [2014] NSWCCA 207
Court: Court of Criminal Appeal, NSW
Date: 7 October 2014
Judges: Leeming JA; Adams J; Fullerton J

Background

The appellant was one of four men tried for the murder of a victim who died on 18 January 2011 after being beaten and stabbed by a group. The Crown alleged a joint criminal enterprise to kill or inflict grievous bodily harm. The appellant, who carried a small wooden baseball bat, participated in pursuing the victim, tackling him to the ground, and was present as co-offenders delivered fatal wounds.

At trial before Grove AJ, the trial judge raised on two separate occasions whether manslaughter should be left open to the jury as an alternative verdict. On each occasion, senior counsel for the appellant and counsel for the other co-accused declined to press for such a direction. The trial judge accordingly did not leave manslaughter to the jury, and the appellant was convicted of murder.

On appeal, the appellant argued for the first time that the trial judge erred in not directing the jury on involuntary manslaughter arising from an unlawful and dangerous act. Because no point had been taken below, the appellant required leave to raise the ground on appeal under r 4 of the Criminal Appeal Rules.

  • Whether the trial judge erred in failing to direct the jury on manslaughter as an alternative verdict to murder.
  • Whether there was a sufficient evidentiary foundation for the jury to find that the appellant's mental state was limited to participation in a joint criminal enterprise to inflict harm falling short of grievous bodily harm or death, so that involuntary manslaughter through an unlawful and dangerous act was a viable alternative verdict.
  • Whether leave should be granted to run a ground not raised at trial, and if an error was established, whether a miscarriage of justice had occurred.

Decision

The Court accepted the applicable legal framework: manslaughter must be left to the jury if there is evidence capable of supporting such a verdict, meaning it must be a "viable" alternative. Failure to leave a viable alternative verdict constitutes an error of law. Because the point was not raised at trial, leave was required, but the Court proceeded on the basis that leave would be granted if a miscarriage of justice could be demonstrated.

The critical question was whether the evidence could reasonably support a finding that the appellant was unaware his co-offenders intended to inflict grievous bodily harm. The appellant's police interview was central. Although some of his answers about whether he saw a machete were equivocal, a final portion of the interview was unambiguous: the appellant described seeing a co-offender swing at the victim three times while they were chasing him, and stated that the victim's blood was hitting him during the pursuit.

The Court held that this evidence, on no reasonable view of it, could support the inference that the appellant lacked awareness that a co-offender was striking the deceased with intent to cause grievous bodily harm. The appellant had then tackled the victim to the ground, facilitating further fatal wounds. Manslaughter was therefore not a viable alternative verdict on this evidence, and no error was established.

The Court also noted that trial counsel, who were better placed to assess the evidence, had twice declined to press for a manslaughter direction when the judge raised the issue. While not determinative, this observation reinforced the Court's conclusion.

Orders Made

• The appeal should be dismissed.

Key Takeaways

  • A trial judge must leave manslaughter to the jury only where there is a proper evidentiary foundation making it a "viable" alternative verdict; where the evidence cannot reasonably support the requisite mental state for manslaughter, no error arises from declining to leave it.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a ground not raised at trial requires leave under r 4 of the Criminal Appeal Rules, and that leave will be granted only where the appellant can demonstrate an error producing a miscarriage of justice.
  • Where an accused's own police interview contains a clear and unequivocal account of witnessing co-offenders inflict serious harm, that evidence may foreclose any reasonable inference that the accused lacked awareness of the intent to cause grievous bodily harm, even if other portions of the interview are equivocal.
  • The fact that the Crown did not rely on particular evidence in its closing address does not diminish the evidentiary force of that material when assessing whether an alternative verdict was viable.
  • Experienced trial counsel's repeated failure to press for a manslaughter direction, on two occasions when the trial judge expressly raised the issue, was noted by the Court as consistent with its own assessment that no sufficient evidentiary foundation for such a direction existed.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules, r 4
- Evidence Act 1995 (NSW), s 191

Cases
- Beavan v The Queen (1954) 92 CLR 660
- Burns v The Queen [2012] HCA 35; 246 CLR 334
- Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim 201
- James v R [2014] HCA 6; 88 ALJR 427
- Lane v R [2013] NSWCCA 317
- R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527