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13
Court of Criminal Appeal 23 August 2016

Moore v R

[2016] NSWCCA 185

Assault & violenceHomicide
CRIME CONVICTION APPEAL MURDER JURY DIRECTION DIRECTIONS ON SELF DEFENCE

Citation: Moore v R [2016] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 23 August 2016
Judge(s): Basten JA; R A Hulme J; Adamson J

Background

The appellant was convicted of murder following the death of a man in Coffs Harbour in October 2012. A dispute over the price of cannabis had escalated throughout the day, culminating in the appellant, his mother, and her partner arming themselves with a mattock handle, a hammer, and other items before driving to the deceased's home. The deceased emerged from his house armed with two knives and was confronted in the street. In the fight that followed, the deceased suffered serious head injuries and died two days later.

The prosecution case at trial was ultimately limited to alleging that the appellant personally delivered the fatal blow with the mattock handle, rather than relying on a joint criminal enterprise theory. The appellant did not give evidence, but his police record of interview was before the jury, in which he described the confrontation and suggested he acted in self-defence.

The appellant was sentenced to a total of 24 years imprisonment with a non-parole period of 18 years. He sought leave to appeal both his conviction and his sentence, with the conviction appeal focusing on the trial judge's written jury directions and an accompanying question trail.

  • Whether the formulation of the self-defence test in the trial judge's question trail was confusing or legally incorrect.
  • Whether the question trail improperly shifted the burden of proof from the prosecution to the accused on the issue of self-defence.
  • Whether the use of the phrase "reasonable possibility" in the jury directions undermined the standard of proof beyond reasonable doubt.
  • Whether the question trail failed to leave open the possibility of an alternative verdict of manslaughter by excessive self-defence.
  • On sentence, whether the trial judge erred in identifying the offence as part of planned criminal activity as an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether provocation was properly treated as a mitigating factor in sentencing under s 21A(3)(c).
  • Whether the overall sentence was manifestly excessive.

Decision

Conviction appeal. The Court examined the written directions and question trail provided to the jury by Garling J. The primary concern was whether the question trail, when read alongside the written directions, correctly conveyed that the prosecution bore the burden of disproving self-defence beyond reasonable doubt. The Court analysed whether the structure and language of the questions could have confused the jury into treating self-defence as a matter the accused needed to establish, rather than one the Crown needed to negative.

The Court also considered whether the directions adequately explained the subjective component of the self-defence test under s 418 of the Crimes Act 1900 (NSW), which requires that the accused genuinely believed their conduct was necessary to defend themselves, and the objective component under s 419, which addresses whether the response was reasonable in the circumstances as the accused perceived them. The question trail's formulation of these requirements was scrutinised closely.

A further issue was whether the question trail left open a path to a manslaughter verdict based on excessive self-defence. The Court considered whether any deficiency in the directions on this alternative verdict caused a substantial miscarriage of justice, applying the proviso under s 6 of the Criminal Appeal Act 1912 (NSW).

Sentence appeal. The Court considered whether the sentencing judge erred in treating the offence as part of planned criminal activity under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It also examined whether the sentencing judge properly took provocation into account as a mitigating factor, and whether the resulting sentence of 24 years was manifestly excessive given the circumstances.

Orders Made

• Grant leave to appeal against conviction.
• Allow the appeal against conviction.
• Quash the conviction.
• Order that the appellant be retried according to law.

Key Takeaways

  • The structure of a jury question trail on self-defence must make clear that the prosecution bears the burden of disproving self-defence beyond reasonable doubt; any formulation that could be read as placing that burden on the accused risks creating a material misdirection.
  • Under ss 418 and 419 of the Crimes Act 1900 (NSW), the self-defence inquiry involves both a subjective element (whether the accused actually believed their conduct was necessary) and an objective element (whether the response was reasonable in the circumstances as the accused perceived them); jury directions must distinguish between these two components.
  • Where a question trail is used in a jury direction, it must preserve all available alternative verdicts, including manslaughter by excessive self-defence, so that the jury is not precluded from returning a verdict open on the evidence.
  • The phrase "reasonable possibility" in jury directions can create ambiguity about the standard of proof if not carefully contextualised within directions that consistently reinforce the beyond reasonable doubt standard.
  • Whether the offence constituted "planned criminal activity" for the purposes of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires careful attention to the facts; misidentifying an aggravating factor under that provision may constitute a material error affecting the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 418, 419, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n), s 21A(3)(c); Pt 4, Div 1A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4

Cases:
- Aubrey v R [2015] NSWCCA 323
- B v R [2015] NSWCCA 103
- Crawford v R [2008] NSWCCA 166
- Demirok v The Queen (1977) 137 CLR 20
- Fahs v R [2007] NSWCCA 26
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Green v The Queen (1971) 126 CLR 28
- H v R [2016] NSWCCA 63
- Jubraeel v R [2015] NSWCCA 131
- Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
- Kanaan & Ors v R [2006] NSWCCA 109
- Knight v The Queen (1992) 175 CLR 495
- Martin v Osborne (1936) 55 CLR 367
- McKinney v The Queen; Judge v The Queen [1991] HCA 6; 171 CLR 468
- Murray v The Queen [2002] HCA 26; 211 CLR 193
- Oblach v R [2005] NSWCCA 440; 65 NSWLR 75
- Palmer v The Queen [1971] AC 814
- Peacock v The King (1912) 13 CLR 619
- Plomp v The Queen (1963) 110 CLR 234
- R v Abusafiah (1991) 24 NSWLR 531