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Court of Criminal Appeal 29 May 2015

James v R

[2015] NSWCCA 125

Homicide
CRIMINAL LAW CONVICTION APPEAL MURDER APPLICANT AND DECEASED SHARED A HOUSE WHETHER CROWN NEGATIVED SELF DEFENCE MURDER CONVICTION QUASHED

Citation: James v R [2015] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 29 May 2015
Judge(s): Hoeben CJ at CL; Hall J; Wilson J

Background

The applicant and the deceased had shared a house in Doonside from around May 2010. Their relationship was volatile, marked by arguments and episodes of domestic violence. The deceased suffered from paranoid schizophrenia and depression and was not taking his medication at the time of his death. Both men had used illicit drugs, and toxicological evidence established that the deceased had consumed methylamphetamine on the day he died.

On 26 May 2011, the applicant stabbed the deceased once with a knife at the Doonside premises. No one else witnessed the stabbing. The applicant did not testify at trial but had been interviewed by police at the scene. In that interview, he said the deceased had been in a drug-fuelled rage, had attacked him with a knife, and that he had wrestled the knife away and stabbed the deceased once, saying he was trying to "just protect myself." The applicant sustained multiple lacerations to both forearms requiring stitches, injuries consistent with knife wounds.

The Crown case was that the applicant had instigated the altercation and that the deceased had only slashed at him after being attacked. The jury returned a guilty verdict on murder on 9 July 2013. The applicant was sentenced to 16 years' non-parole period. He appealed against both conviction and sentence.

  • Whether the murder verdict was unreasonable and could not be supported having regard to the evidence, particularly on the issue of self-defence
  • Whether the trial judge erred in declining to leave provocation as a partial defence to the jury
  • Whether the trial judge failed to allow a reduction in sentence for onerous bail conditions that were akin to house arrest
  • Whether the sentence was manifestly excessive

Decision

The Court of Criminal Appeal focused primarily on the first ground: whether the Crown had discharged its burden of negativing self-defence to the criminal standard, such that a guilty verdict on murder was open to the jury. All three judges concluded it was not.

Hoeben CJ at CL examined the objective evidence carefully. The applicant's serious knife wounds were not self-inflicted and were consistent with him having been attacked by the deceased before the stabbing. The pharmacological evidence indicated the deceased had consumed methylamphetamine that day and may have been behaving aggressively. The Crown's own case acknowledged that the deceased had slashed at the applicant with a knife. Against that background, the Chief Judge concluded that a reasonable jury must have had a doubt about whether the applicant acted in self-defence, meaning the murder conviction was unreasonable and could not stand.

Hall J agreed on the unreasonable verdict ground, noting that the physical evidence and the applicant's largely consistent account could not be reconciled with a murder conviction beyond reasonable doubt. Wilson J reached the same conclusion and went further, expressing the view that an acquittal should be entered rather than a new trial for murder ordered. On the broader question, the Court agreed that the evidence was capable of sustaining a manslaughter conviction (on the basis of excessive self-defence) but not murder.

Because the appeal succeeded on Ground 1, the Court did not address the provocation, bail conditions, or sentence grounds in detail. The majority order was to quash the murder conviction, enter an acquittal on the murder charge, and order a new trial limited to manslaughter. Wilson J differed on the last point, favouring a full acquittal.

Orders Made

  • Leave to appeal against conviction granted; appeal allowed
  • Verdict of guilty of murder quashed
  • Acquittal on the charge of murder entered
  • New trial ordered, limited to the charge of manslaughter

Key Takeaways

  • The Court of Criminal Appeal confirmed that where objective evidence of an applicant's serious injuries is consistent with having been attacked by the deceased, and the Crown's own case acknowledges that attack, a murder conviction may be unreasonable if the Crown cannot negative self-defence to the criminal standard.
  • A verdict is unreasonable under s 6(1) of the Criminal Appeal Act 1912 where, on a review of the whole of the evidence, a reasonable jury must have had a doubt about the accused's guilt, even where that jury was in a superior position to assess credibility at trial.
  • Where the principal issue at trial turned on agreed or largely objective physical evidence rather than disputed witness credibility, the usual advantage the jury holds over an appellate court in assessing evidence carries reduced weight.
  • The evidence in this case was capable of establishing manslaughter by excessive self-defence, but the Court of Criminal Appeal held it was incapable of establishing murder beyond reasonable doubt, illustrating the significance of the distinction between those two offences in a self-defence context.
  • A new trial ordered on appeal can be restricted to a lesser charge (here, manslaughter) where the appellate court is satisfied the evidence could not support a conviction on the original charge (murder).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8(1)
- Evidence Act 1995 (NSW), s 66
- Crimes Act 1900 (NSW), s 18(1)(a)

Cases
- Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317
- Graham v The Queen [1998] HCA 61; 195 CLR 606
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v R [2001] HCA 53; 213 CLR 606
- R v James [2013] NSWSC 1560 (sentence decision below)
- R v PL [2009] NSWCCA 256
- SKA v R [2011] HCA 13; 243 CLR 400