Citation: Meakin v R [2018] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 14 December 2018
Judges: Macfarlan JA at [1]; Hoeben CJ at CL at [140]; Fagan J at [151]
Background
The appellant was convicted by jury of the murder of a man who died after being struck by the appellant's van on Richmond Road, Plumpton, shortly after midnight on 21 February 2014. The Crown's case was that the appellant deliberately drove his van onto the grass verge to strike the deceased from behind, intending at minimum to cause grievous bodily harm. The two men had earlier had a heated altercation at a nearby hotel, and the appellant had been drinking heavily.
The appellant gave evidence that the collision was accidental: he said the deceased stepped unexpectedly in front of his vehicle. It was common ground that both men were intoxicated. After the collision, the appellant did not stop. He drove home by back roads and parked his van out of sight. There were no eyewitnesses to the collision, so the Crown relied entirely on circumstantial evidence.
The Crown's circumstantial case drew on the prior altercation and the appellant's hostility, the direction the appellant chose to drive after leaving the hotel, forensic evidence about the location of the impact, pollen analysis suggesting the van had travelled onto the grass verge, and the appellant's departure from the scene without stopping.
Legal Issues
- Whether the jury's verdict of murder was unreasonable and unable to be supported by the evidence (Ground 1)
- Whether the trial judge erred in leaving evidence of the appellant's flight from the scene to the jury, particularly as evidence of consciousness of guilt of murder (Ground 2)
- Whether, if the murder conviction were quashed on Ground 2, the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to prevent a retrial
Decision
Ground 1: Unreasonable verdict
Macfarlan JA granted leave to appeal on this ground but ultimately rejected it. Although the question was finely balanced, his Honour concluded the jury verdict of murder could not be characterised as unreasonable given the totality of the circumstantial evidence. Hoeben CJ at CL and Fagan J agreed.
Ground 2: Flight from scene as consciousness of guilt
The Court allowed the appeal on this ground. The trial judge had directed the jury that the appellant's flight from the scene could be used as evidence of consciousness of guilt of murder. The Court found this was a misdirection. The appellant's flight was equally, and more naturally, explicable by his awareness that he was driving with a blood-alcohol level above the prescribed limit. His departure from the scene was therefore incapable of distinguishing between guilt of murder on the one hand and guilt of the lesser alternative offence (aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900) on the other.
Application of the proviso
The Crown argued that even if the misdirection occurred, no substantial miscarriage of justice resulted. The Court rejected this. In a wholly circumstantial case, the impermissible inference that the appellant's flight demonstrated consciousness of guilt of murder may well have been significant to the jury's deliberations. The misdirection was of a character that precluded the Court from being satisfied that no substantial miscarriage of justice had occurred, applying the principles in Lane v The Queen [2018] HCA 28 and related High Court authority.
Orders Made
- Leave to appeal granted
- Ground 1 of the appeal rejected
- Appeal allowed on Ground 2 only
- Conviction of murder quashed
- Retrial of the appellant on the indictment ordered
Key Takeaways
- Flight from the scene of an incident cannot be used as evidence of consciousness of guilt of a specific offence where the conduct is equally consistent with awareness of guilt of a lesser or alternative offence. The flight must be capable of pointing to the more serious charge before such a direction is appropriate.
- A trial misdirection that introduces an impermissible consciousness-of-guilt inference into a wholly circumstantial Crown case may preclude the application of the proviso under s 6(1) of the Criminal Appeal Act 1912, even where the appellate court considers the verdict was not itself unreasonable.
- In dismissing Ground 1, the Court of Criminal Appeal confirmed that the threshold for an "unreasonable verdict" appeal remains a high one: the question is whether it was open to the jury to be satisfied beyond reasonable doubt, not whether the appellate court would have reached the same conclusion.
- Where an accused's post-offence conduct has multiple available explanations, the Crown cannot rely on that conduct to invite the jury to prefer the most serious explanation without a proper evidentiary foundation supporting that specific inference.
- The alternative charge of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW) was remitted for retrial; the quashing of the murder conviction did not result in an acquittal on all counts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Cases
- Lane v The Queen [2018] HCA 28
- Kalbasi v Western Australia [2018] HCA 7
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- GAX v The Queen [2017] HCA 25
- BCM v The Queen [2013] HCA 48
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- R v Cook [2004] NSWCCA 52