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Court of Criminal Appeal 2 June 2017

Patel v Regina

[2017] NSWCCA 121

Homicide
CRIME MURDER SELF DEFENCE ERROR CONCEDED BY CROWN

Citation: Patel v Regina [2017] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 2 June 2017
Judge(s): Bathurst CJ, Hoeben CJ at CL, McCallum J

Background

The appellant was convicted by jury of the murder of the deceased, a woman who had arrived from India to live with a man the appellant had previously been in an intimate relationship with. The Crown's case was that the appellant attended the deceased's home in the early hours of 30 July 2013 and killed the deceased by a combination of strangulation and smothering.

At trial, the appellant gave evidence that she had returned to the flat to retrieve documents and that the deceased confronted her armed with a knife. She said a struggle followed during which she placed her hand over the deceased's mouth and her hand around the deceased's neck. This account formed the foundation for a self-defence claim, which was the critical issue at trial.

The appellant had initially denied to police that she had been at the flat that morning. At trial she explained this as a reaction of panic and fear, and gave detailed evidence of the events leading up to the confrontation.

  • Whether the trial judge's written and oral directions to the jury on self-defence in relation to murder were correct in law.
  • Whether the erroneous directions, if established, gave rise to a substantial miscarriage of justice warranting the conviction being quashed.

Decision

The Crown conceded that the trial judge's directions on self-defence in relation to murder were erroneous. The Court accepted that concession as appropriate and quashed the conviction, ordering a new trial.

The error arose from the wording of the judge's aide memoire and summing-up directions. The jury was directed, in effect, that the Crown could eliminate self-defence by proving either: (a) that the appellant did not believe her acts were necessary to defend herself, or (b) that her acts were not a reasonable response in the circumstances as she perceived them. The directions then stated that if the Crown proved one of those things, the verdict would be guilty of murder.

This direction was legally incorrect. Section 421 of the Crimes Act 1900 (NSW) provides that where a person uses fatal force in a genuine belief it was necessary for self-defence, but that force was not a reasonable response in the circumstances as they perceived them, the person is not guilty of murder but may be guilty of manslaughter. This is sometimes referred to as "excessive self-defence manslaughter." The judge's directions left open the possibility of a murder verdict even where the Crown had failed to prove the appellant did not genuinely believe her conduct was necessary, which was precisely the scenario s 421 addresses.

Given that the misdirection meant the jury may have convicted of murder in circumstances where the proper verdict would have been excessive self-defence manslaughter, the Crown properly conceded that no court could be satisfied there had been no substantial miscarriage of justice.

Orders Made

  • The conviction for murder was quashed.
  • A new trial was ordered.
  • The proceedings were to be entered in the next arraignments list on 2 June 2017.

Key Takeaways

  • A conviction for murder cannot stand where jury directions permit that verdict even if the Crown failed to disprove the accused's belief that their conduct was necessary for self-defence.
  • Under s 421 of the Crimes Act 1900 (NSW), where a person genuinely believes their use of fatal force is necessary to defend themselves but that force is not a reasonable response in the circumstances as they perceived them, the appropriate verdict is manslaughter, not murder.
  • The Court of Criminal Appeal accepted the Crown's concession that the misdirection was erroneous and that a substantial miscarriage of justice could not be ruled out, making quashing the conviction the appropriate course.
  • Distinguishing between the two limbs of self-defence, namely the subjective belief of necessity and the objective reasonableness of the response, is critical to directing juries correctly on both murder and excessive self-defence manslaughter.
  • Where a trial judge's written aide memoire to the jury misstates the legal test on a central issue, and the summing-up substantially follows that document, the error may infect the entire verdict on that charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 421 (self-defence involving excessive force that inflicts death)

Cases cited: No cases were cited in the judgment.