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Court of Criminal Appeal 7 December 2016

Silva v R

[2016] NSWCCA 284

Homicide
CRIMINAL LAW MANSLAUGHTER SELF DEFENCE VERDICT UNREASONABLE

Citation: Silva v R [2016] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 7 December 2016
Judges: Leeming JA at [1]; McCallum J at [89]; R S Hulme AJ at [113]

Background

The appellant had been in a relationship with the deceased for approximately four years, during which she suffered persistent and serious physical and verbal abuse. The deceased had threatened to kill her, had assaulted her throughout her pregnancy, and had made explicit threats against her family members. On the evening of 13 May 2012, he arrived at her parents' home in an agitated state, with significant concentrations of amphetamine and methylamphetamine in his blood.

The appellant stabbed the deceased five or six times, with wounds to his back and the back of his head. Only one wound was fatal. She was charged with murder and tried before Hoeben CJ at CL and a jury in the NSW Supreme Court.

The jury returned a verdict of not guilty of murder but guilty of manslaughter. The appellant was sentenced to 18 months imprisonment, the whole of which was suspended. She appealed to the Court of Criminal Appeal on the basis that the jury's verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict of manslaughter was unreasonable and unsupportable having regard to the whole of the evidence, within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW).
  • Specifically, whether the Crown had discharged its burden of proving beyond reasonable doubt that the appellant's actions were not a reasonable response to the circumstances as she perceived them, so as to negative self-defence under s 418 of the Crimes Act 1900 (NSW).

Decision

The Court of Criminal Appeal allowed the appeal, with each of the three judges arriving at the conclusion that the verdict was unreasonable, though through somewhat varied reasoning.

The central question was whether the Crown had proved that the appellant's act was not a reasonable response in the circumstances as she perceived them. The jury had implicitly accepted that the appellant genuinely believed it was necessary to act in self-defence (otherwise she would have been convicted of murder), and the remaining question was whether her response was reasonable. The Crown bore the onus of proving the absence of reasonableness beyond reasonable doubt.

The court examined the extensive evidence of the deceased's conduct: a long history of serious physical violence, explicit death threats recorded on audio, his drug-affected and erratic arrival at the family home, and his significantly larger physical stature. R S Hulme AJ, whose reasons were relied upon by Leeming JA, concluded that the deceased's verbal and physical conduct was so saturated with violence that the requirements of reasonableness did not demand that the appellant refrain from acting as she did. The nature of the stabbing, including wounds to the back, was noted as pointing against her account that the deceased had turned or was rising, but this was not sufficient to sustain the verdict against the weight of the remaining evidence.

McCallum J agreed that the verdict was unreasonable, emphasising the demanding standard a court must apply before overriding a jury's conclusion. Nonetheless, having regard to the totality of the evidence and the Crown's burden on the reasonableness element, her Honour was satisfied the conviction could not stand.

Orders Made

  • Appeal allowed.
  • Conviction for manslaughter and the sentence imposed by Hoeben CJ at CL on 6 March 2015 quashed.
  • Judgment and verdict of acquittal entered.

Key Takeaways

  • A verdict of manslaughter is unreasonable, and cannot stand, where the totality of the evidence does not support the conclusion beyond reasonable doubt that the accused's response was unreasonable in the circumstances as they perceived them, bearing in mind that the Crown bears the onus of negativing self-defence.
  • Where a jury returns a verdict of not guilty of murder but guilty of manslaughter in a self-defence case, it has implicitly accepted that the accused genuinely believed action was necessary; the remaining question is whether that response was reasonable.
  • The Court of Criminal Appeal confirmed that reasonableness in self-defence is assessed against the circumstances as the accused perceived them, and that a sustained history of serious domestic violence and credible threats is highly material to that assessment.
  • Evidence that wounds were inflicted to the deceased's back did not, in this case, conclusively establish that the response was unreasonable, given the broader circumstances including the deceased's drug-affected state, physical dominance, and history of extreme violence toward the appellant.
  • In quashing the conviction, the Court directed that a verdict of acquittal be entered rather than ordering a retrial, reflecting the conclusion that no reasonable jury could have been satisfied beyond reasonable doubt that self-defence was negatived.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 418, 419, 421 (self-defence)
- Criminal Appeal Act 1912 (NSW), s 6 (unreasonable verdict)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
- Civil Liability Act 2002 (NSW)

Cases:
- The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- R v Nguyen (2010) 242 CLR 491; [2010] HCA 38
- Phillips v R [2016] NSWCCA 159
- Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
- Whitmore v R; R v Whitmore [2010] NSWCCA 157
- R v Esho; R v Sako [2001] NSWCCA 415
- Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204