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Court of Criminal Appeal 10 November 2014

Batcheldor v R & Walsh v R

[2014] NSWCCA 252

Also reported as (2014) 249 A Crim R 461
Assault & violenceHomicide
CRIMINAL LAW APPEALS AGAINST CONVICTION MURDER, SPECIALLY AGGRAVATED KIDNAPPING

Citation: Batcheldor v R & Walsh v R [2014] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 10 November 2014
Judge(s): Bathurst CJ, Hidden J, R A Hulme J

Background

Two appellants, referred to here as the female appellant and the male appellant, were jointly convicted of specially aggravated kidnapping and murder of a man in January 2010. The offences occurred in and around Wollongong and Dapto. The central allegation was that the pair detained the victim in a motor vehicle to extract information about stolen property, and the victim was subsequently killed. His body was later found in the burnt-out vehicle.

The male appellant was alleged to have been the direct perpetrator of the killing. The female appellant was alleged to have been complicit in both offences as a principal in the second degree, meaning a person who aids or assists the primary offender rather than committing the act themselves. Both were convicted after a jury trial and sentenced to substantial terms of imprisonment.

The female appellant appealed against both conviction and sentence. The male appellant appealed against conviction only, challenging the trial judge's directions to the jury on constructive murder.

  • Whether the jury directions on the female appellant's liability as a principal in the second degree for specially aggravated kidnapping were adequate, in particular whether the element of acting "in company" was properly explained.
  • Whether the trial judge's directions on constructive murder in the female appellant's case were deficient, given the Crown's concession that the directions concerning the elements of the foundational offence (the kidnapping) were flawed.
  • Whether, in the male appellant's case, the trial judge was required to direct the jury that the act causing death in a constructive murder scenario must have been done "maliciously" within the meaning of s 18(2)(a) of the Crimes Act 1900.

Decision

Female appellant's appeal (conviction): The Court found that there were material deficiencies in the trial judge's directions regarding the foundational offence underlying the constructive murder count. The Crown itself conceded that the directions as to the elements of specially aggravated kidnapping were inadequate, particularly regarding what the female appellant needed to know or foresee about the circumstances of special aggravation. The Court accepted that concession as well-founded.

Because proof of the female appellant's liability for the foundational offence was essential to establishing the mental element for constructive murder against her, the flawed directions infected the murder conviction as well. The Court allowed her appeal and quashed both convictions, ordering a new trial.

Male appellant's appeal (constructive murder directions): The male appellant's sole ground was that the trial judge should have directed the jury that the act causing death must have been done "maliciously" as required by s 18(2)(a) of the Crimes Act. The Court considered the history of the malice requirement, including the repeal of the statutory definition in s 5 by the Crimes Amendment Act 2007, noting that s 18(2)(a) itself remains unchanged and that savings provisions preserve the concept of malice.

Drawing on the High Court's analysis in Mraz v The Queen (1955) 93 CLR 493, the Court accepted that where a jury is considering constructive murder, a direction addressing the malice requirement in s 18(2)(a) is necessary. The Court noted that whether a malice direction was required and what it should say remained live questions on the facts of this case, and the matter was resolved accordingly in the context of the male appellant's appeal.

Orders Made

  • The female appellant's appeal against conviction is allowed.
  • Both convictions of the female appellant (specially aggravated kidnapping and murder) are quashed.
  • A new trial is ordered for the female appellant.
  • The male appellant's appeal relates to conviction for murder only; the Court addressed the directions ground as described in the judgment.

Key Takeaways

  • A conviction for constructive murder founded on a principal-in-the-second-degree's participation in a foundational offence requires adequate jury directions on every element of that foundational offence. Deficient directions on the foundational offence will infect the constructive murder verdict.
  • The Court of Criminal Appeal confirmed that the "in company" element of specially aggravated kidnapping under s 86(3) of the Crimes Act 1900 must be properly explained to a jury in cases where a co-accused's liability as a secondary party depends on it.
  • Under s 18(2)(a) of the Crimes Act, no act causing death falls within the murder provision unless it was done maliciously. The Court recognised, following Mraz v The Queen, that this requirement remains operative in constructive murder cases even though the statutory definition of "maliciously" in s 5 was repealed by the Crimes Amendment Act 2007.
  • The savings provision in clause 65 of Schedule 11 to the Crimes Amendment Act 2007 preserves the operation of references to "malicious" or "maliciously" throughout the Crimes Act, meaning the concept retains legal significance despite the repeal of the definition.
  • No settled authority existed in this Court, as at the date of the decision, on precisely what s 18(2)(a) should now be taken to mean in the absence of a statutory definition, leaving that question open for a future case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 5 (repealed), 18, 86(3)
- Crimes Amendment Act 2007 (NSW), Schedule 11, clause 65
- Evidence Act 1995 (NSW)

Cases:
- Browne v Dunn (1894) 6 R 67
- Chen v R [2013] NSWCCA 116
- FP v R [2012] NSWCCA 182
- Johns v The Queen (1979-80) 143 CLR 108
- Mraz v The Queen (1955) 93 CLR 493
- Penza and Di Maria v Regina [2013] NSWCCA 21
- R v Baartman [2000] NSWCCA 298
- R v Betts & Ridley (1930) 22 Cr App R 148
- R v Button and Griffen [2002] NSWCCA 159; 54 NSWLR 455
- R v R & G (1995) 63 SASR 417
- R v Shahra (1992) 30 NSWLR 292
- R v Solomon [1959] QdR 123
- R v Van Beelen (1973) 4 SASR 353
- Reg v Johns [1978] 1 NSWLR 282
- Royall v The Queen (1990-91) 172 CLR 378