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Court of Criminal Appeal 19 August 2016

Grogan v R

[2016] NSWCCA 168

Assault & violenceHomicideTheft & property
CRIMINAL LAW MURDER INFERENCES AVAILABLE ONE PUNCH PLUS THEFT SUBSTITUTED VERDICT NOT AVAILABLE.

Citation: Grogan v R [2016] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 19 August 2016
Judge(s): Ward JA, Davies J, RS Hulme AJ

Background

The appellant was convicted of the murder of a man with whom he and his partner had previously lived. Following a falling-out, the deceased had made clear the appellant was unwelcome at his home, though the appellant's partner continued to visit and clean for him. On the day in question, the appellant had been involved in a heated altercation at a nearby service station and was observed by neighbours entering the deceased's rear yard without permission.

Neighbours gave evidence of hearing a series of loud, deep thuds from the rear of the deceased's home, after which the appellant was seen leaving the property over a fence, keeping low before walking quickly away. A police officer later found a laptop, which the appellant admitted he had taken from the deceased's premises. The deceased was found to have suffered fatal injuries consistent with a single punch.

The prosecution case proceeded on the basis of constructive murder, meaning the Crown alleged the killing occurred in the course of a serious indictable offence, namely robbery. The appellant was convicted of murder at trial in August 2013 and sentenced to imprisonment with an 18-year non-parole period.

  • Whether the evidence was sufficient to sustain the murder conviction, including the inference that the appellant intended to steal from the deceased before or at the time of delivering the fatal blow
  • Whether, if the murder conviction was quashed, the Court of Criminal Appeal could substitute a verdict of manslaughter under s 7(2) of the Criminal Appeal Act 1912 (NSW)
  • Whether, in the alternative, a retrial should be ordered

Decision

The Court allowed the appeal and quashed the murder conviction. The Court's reasoning on the sufficiency of evidence centred on whether the jury could properly draw the inference that the theft was not an afterthought but was connected to the fatal act. On the facts available, including the single blow, the subsequent taking of the laptop, and the nature of the evidence as to the appellant's prior conduct and motive, the Court concluded the evidence did not support the murder verdict to the requisite standard.

On the question of substituting a manslaughter verdict, the Court held that s 7(2) of the Criminal Appeal Act 1912 permits such a course only where the jury "must have been satisfied of facts which proved the appellant guilty of that other offence." Because the Crown case was left to the jury purely on the constructive murder basis, the jury had no occasion to consider the specific elements of manslaughter, such as the degree of force used, whether there was an intention to cause grievous bodily harm, or whether the act was dangerous in the relevant sense.

The Court drew support from Spies v The Queen (2000) 201 CLR 603 and Mehajer v R [2014] NSWCCA 167, both of which emphasised that a substituted verdict is not available merely because manslaughter was a theoretically open finding. Since the jury may have gone no further than concluding the appellant struck the deceased, without evaluating those further factual questions, the statutory precondition for substitution was not met. A retrial limited to the charge of manslaughter was therefore ordered.

Orders Made

  • Appeal allowed
  • Murder conviction and sentence imposed on 8 November 2013 quashed
  • Retrial ordered, limited to the issue of manslaughter

Key Takeaways

  • Under s 7(2) of the Criminal Appeal Act 1912 (NSW), a substituted verdict of a lesser offence is only available where the jury must, on the findings it made, have been satisfied of the facts proving guilt of that lesser offence. It is not enough that the lesser verdict was theoretically open.
  • Where the Crown case is put to the jury exclusively on a constructive murder basis, the jury has no need to traverse the factual elements of manslaughter. That omission prevents the Court of Criminal Appeal from substituting a manslaughter verdict on appeal.
  • A single punch combined with subsequent theft does not automatically establish the connection required for constructive murder. The timing and intent linking the act of violence to the underlying serious indictable offence remain matters the prosecution must establish to the requisite standard.
  • The Court of Criminal Appeal confirmed the approach in Spies v The Queen and Mehajer v R, reaffirming that earlier cases which ignored the preconditions for a substituted verdict should not be followed.
  • Where a substituted verdict is unavailable but the evidence could support a manslaughter finding, ordering a retrial limited to that charge is the appropriate remedy.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 7(2)

Cases
- Edwards v The Queen (1993) 178 CLR 193
- M v The Queen [1994] HCA 63; 181 CLR 487
- Mehajer v R [2014] NSWCCA 167; 244 A Crim R 15
- Penza and Di Maria v R [2013] NSWCCA 21
- R v Cook [2004] NSWCCA 52
- R v Grogan (No 2) [2013] NSWSC 1192
- R v Lucas (Ruth) [1981] 1 QB 720
- Spies v The Queen [2000] HCA 43; 201 CLR 603
- Zaburoni v The Queen [2016] HCA 12