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Court of Criminal Appeal 22 March 2017

Lane v R

[2017] NSWCCA 46

Homicide
CRIME CONVICTION APPEAL MANSLAUGHTER CONVICTION APPEAL MANSLAUGHTER CONVICTION APPEAL

Citation: Lane v R [2017] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 22 March 2017
Judges: Meagher JA, Davies J (joint judgment); Fagan J (separate judgment)

Background

The appellant was convicted of manslaughter following the death of a man outside a hotel in Casino, NSW, in September 2012. Both men had been drinking and neither had previously known the other. An altercation on the footpath and roadway was captured on CCTV footage.

The CCTV showed the deceased falling and striking his head on the roadway on two separate occasions, approximately ten seconds apart. Medical evidence accepted at trial established that the head injuries from each fall were, independently, sufficient to cause death. The deceased died in hospital nine days after the incident.

The Crown put its case to the jury on the basis that the appellant had committed a voluntary act causing each fall. Manslaughter was left to the jury on two alternative bases: manslaughter by excessive self-defence and manslaughter by unlawful and dangerous act. The appellant did not give evidence and denied that either fall resulted from any voluntary act on his part.

  • Whether the trial judge erred by failing to direct the jury that it had to be unanimous as to which voluntary act or acts by the appellant caused the deceased's death before returning a guilty verdict.
  • Whether the Crown's repeated references during closing address to "king hit" and "one punch" conduct (based on evidence the trial judge had already excluded) caused the trial to miscarry.
  • Whether handwritten material found in the jury room after verdict, urging an end to "coward punches," gave rise to a reasonable apprehension of juror partiality or a failure to discharge the jury's task impartially.
  • Whether a typewritten note found in the jury room containing dictionary definitions of "murder" and "manslaughter" established that a juror had failed to apply the trial judge's directions.
  • Whether the written directions to the jury, including a "question trail," were confusing or distorted the onus of proof in relation to self-defence.

Decision

Ground 1: Unanimity direction
The Court allowed the appeal on this ground. Where the Crown relies on two distinct voluntary acts either of which could separately constitute the actus reus (the guilty act) of the offence, the trial judge is required to direct the jury that it must be unanimous as to which act, or which combination of acts, forms the basis for its verdict. No such direction was given here. The Crown had expanded its case during trial to include the first fall as a separate act of criminal responsibility, yet the jury was not told it needed to agree on which act it was convicting the appellant of performing.

Fagan J, in a separate judgment, emphasised that the Crown's decision to rely on the first fall as a distinct voluntary act was forensically unnecessary and weakened rather than strengthened the prosecution case. The evidence of a willed act by the appellant causing the first fall was considerably weaker than that supporting the punch alleged to have caused the second fall, and the Crown did not need the first fall to establish cause of death.

Grounds 2 and 3: Jury conduct and Crown references to "king hit"
The Court did not need to resolve these grounds definitively, given its conclusion on ground 1. However, the judgments addressed the evidentiary questions arising from the sheriff's post-verdict investigation and the material found in the jury room, including the admissibility of that material under s 9(2) of the Evidence Act 1995 (NSW), which limits the use of evidence about jury deliberations.

Ground 4: Self-defence directions
The Court noted that ground 4 raised difficult questions about whether the written directions, including the question trail provided to the jury, were confusing or had the effect of reversing or distorting the onus of proof on self-defence. Given that the conviction was quashed on ground 1, it was unnecessary to determine this ground conclusively, though the Court acknowledged the complexity of the issue.

Orders Made

  • Extension of time to file the notice of appeal granted.
  • Leave to appeal granted.
  • Appeal allowed on ground 1.
  • Conviction quashed.
  • New trial ordered.

Key Takeaways

  • Where a Crown case relies on two or more discrete voluntary acts, either of which could independently constitute the act causing death, the trial judge must direct the jury that it must reach a unanimous view as to which act or acts form the basis of its verdict; failure to give that direction is a ground for quashing the conviction.
  • A substantial miscarriage of justice will preclude application of the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) even where the appellate court might otherwise be able to conclude that guilt was established beyond reasonable doubt.
  • Expanding the Crown case during trial to rely on an additional, weaker act of the accused can create significant procedural and directional obligations that must be met if the conviction is to stand.
  • Material found in a jury room after verdict, including writings urging an end to "coward punches," raised questions about juror partiality that warranted investigation under s 73A of the Jury Act 1977 (NSW), illustrating the mechanism available to courts when post-verdict concerns arise about jury conduct.
  • The Court of Criminal Appeal confirmed that where an appeal succeeds on one ground sufficient to warrant a new trial, remaining grounds (including complex questions about self-defence directions and the onus of proof) need not be finally determined.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1), 18(2), 419, 421
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, rr 4, 25A
- Evidence Act 1995 (NSW), s 9(2)
- Jury Act 1977 (NSW), s 73A

Cases
- AK v Western Australia (2008) 232 CLR 438
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
- Baini v The Queen (2012) 246 CLR 469
- Castle v The Queen [2016] HCA 46
- Evans v The Queen (2007) 235 CLR 521
- Filippou v The Queen (2015) 256 CLR 47
- KBT v The Queen (1997) 191 CLR 417
- Krakouer v The Queen (1998) 194 CLR 202
- Lindsay v The Queen (2015) 255 CLR 272
- Mraz v The Queen (1955) 93 CLR 493
- Royall v The Queen (1991) 172 CLR 378
- Chapman v R [2013] NSWCCA 91
- Hadchiti v R [2016] NSWCCA 63
- Moore v R [2016] NSWCCA 185