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Court of Criminal Appeal 6 December 2017

Scott v R

[2017] NSWCCA 296

Assault & violenceHomicide
CRIMINAL LAW CONVICTION APPEAL MURDER VICTIM STABBED IN COURSE OF FIGHT CHANGE OF DEFENCE COUNSEL DURING TRIAL REFUSAL BY CROWN TO ACCEPT PLEA

Citation: Scott v R [2017] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 6 December 2017
Judge(s): Hoeben CJ at CL (lead judgment); McCallum J (agreeing with qualification); Bellew J (agreeing)

Background

The appellant was convicted of murder following a jury trial before Wilson J in the NSW Supreme Court. The conviction arose from a fatal stabbing that occurred in the early hours of 5 April 2013 in a Cessnock swimming pool car park, during a street fight involving the appellant, his girlfriend, and a group of young people who had been drinking at a nearby hotel.

The Crown alleged the appellant produced a knife from a multi-tool device and stabbed the deceased at an early point in the fight. The appellant did not give evidence at trial. His case was one of self-defence, later refined after a change of counsel to excessive self-defence (that is, that he genuinely but unreasonably believed he needed to act as he did), which if accepted would have reduced murder to manslaughter.

The trial was notable for several procedural disruptions. After 11 days of evidence, defence counsel withdrew due to an "insuperable ethical conflict" and was replaced mid-trial. The appellant was re-arraigned and entered a plea of guilty to manslaughter, which the Crown declined to accept. The trial judge refused applications to discharge the jury on five separate occasions. The appellant was ultimately convicted of murder and sentenced to imprisonment with a non-parole period of 18 years.

  • Whether the cumulative effect of bad character evidence being admitted and the mid-trial change of defence counsel required the jury to be discharged, such that the trial judge's repeated refusal to discharge gave rise to a miscarriage of justice (Ground 1).
  • Whether the verdict of murder was unreasonable or could not be supported by the evidence, given the conflicting accounts of heavily intoxicated witnesses and the absence of clear evidence about the precise timing of the stabbing (Ground 2).

Decision

Ground 1: Refusal to discharge the jury

Hoeben CJ at CL examined the circumstances surrounding the withdrawal of original defence counsel and the admission of evidence touching on the appellant's character. His Honour found that the trial judge had carefully considered each application to discharge and that the decisions to refuse discharge were open in the exercise of her Honour's discretion. The change of counsel, while significant, was managed with appropriate adjournment time and the incoming counsel was given adequate opportunity to prepare. No miscarriage of justice was established on this ground.

Ground 2: Unreasonable verdict

The Court conducted an independent review of the whole of the evidence, as required when this ground is raised on appeal. The witnesses were heavily intoxicated and gave conflicting accounts, and there was no clear evidence pinpointing the precise moment the stabbing occurred. Nonetheless, Hoeben CJ at CL concluded it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt for murder. His Honour also noted the jury's significant advantage in seeing and hearing the witnesses directly, which was particularly important given the task of weighing conflicting testimony. McCallum J agreed, having conducted her own independent review of the evidence, though she declined to adopt one portion of the lead judgment (at [239] and [240]). Bellew J also agreed, having independently assessed the evidence.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge's repeated refusal to discharge a jury will not constitute a miscarriage of justice where each refusal reflects a careful and defensible exercise of discretion in the circumstances as they stood at the time.
  • A mid-trial change of defence counsel does not automatically give rise to a miscarriage of justice; the question is whether the accused was genuinely prejudiced and whether adequate steps were taken to address any disadvantage.
  • Where an appeal raises the ground that a verdict is unreasonable, each appellate judge is required to conduct an independent assessment of the whole of the evidence, not merely to review whether the trial judge directed the jury correctly.
  • Conflicting evidence from intoxicated witnesses, and the absence of precise evidence about when a fatal act occurred, do not necessarily render a murder verdict unreasonable if the evidence as a whole could satisfy a jury beyond reasonable doubt.
  • An accused's silence at trial remains relevant context: where facts that might explain or contradict the prosecution evidence could only lie within the accused's knowledge, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of any evidence to support them.

Legislation and Cases Referenced

Cases cited:
- AL v Regina [2017] NSWCCA 34
- Aslett v R [2009] NSWCCA 188
- Crofts v The Queen [1996] HCA 22; 186 CLR 427
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Maric v The Queen (1978) 52 ALJR 631
- Mikael v The Queen [2015] NSWCCA 294
- R v Ball (1961) SR NSW 37
- R v Dudko [2002] NSWCCA 336; 132 A Crim R 371
- R v Knape (1965) VR 469
- R v Owen (unreported, NSWCCA, 7 July 1988)
- R v Scott (No 5) [2015] NSWSC 462
- R v Scott (No 6) [2015] NSWSC 678
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308
- The Queen v Glennon [1992] HCA 16; 173 CLR 592
- Trieu v R [2012] NSWCCA 169
- Walker v R [2014] VSCA 177

Legislation: No specific legislation was identified in the materials provided.