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Court of Criminal Appeal 16 April 2018

Towney v R

[2018] NSWCCA 65

Homicide
CRIMINAL LAW CONVICTION APPEAL OFFENCE OF MURDER WHETHER DIRECTIONS AS TO SELF DEFENCE CONTRARY TO LAW APPLICATION OF R 4

Citation: Towney v R [2018] NSWCCA 65
Court: Court of Criminal Appeal of New South Wales
Date: 16 April 2018
Judge(s): Hoeben CJ at CL; Johnson J; N Adams J

Background

The appellant was convicted of murder following a fatal stabbing at Gilgandra in the early hours of 20 July 2013. The victim had attended a party at the appellant's home and, after a series of confrontations throughout the night, a fist fight broke out in the front yard. Shortly after the fight ended, the appellant went inside, selected a large carving knife from the kitchen, and then ran after the victim, who had already left the yard and was walking away. The appellant stabbed the victim multiple times, causing a catastrophic wound to the neck that proved fatal.

At trial, the appellant did not give evidence and called no witnesses. He conceded that he had inflicted the fatal wounds, but ran three partial defences: self-defence, provocation, and lack of intent for murder. On self-defence, the appellant specifically conceded that his conduct was not a reasonable response in the circumstances as he perceived them. That concession meant the only question for the jury on self-defence was whether the Crown had proved beyond reasonable doubt that the appellant did not genuinely believe his actions were necessary to defend himself.

The jury convicted the appellant of murder after less than two hours of deliberation. He appealed on two grounds, both directed at the trial judge's directions to the jury.

  • Whether the trial judge's directions on self-defence were contrary to law by expressing the standard of proof as "is there a reasonable possibility" rather than in orthodox terms, contrary to the principles discussed in Hadchiti v R and Moore v R.
  • Whether the trial judge erred by directing the jury to consider self-defence before determining whether the Crown had proved the intent required for murder, rather than considering intent first.

Decision

Ground 1: Self-defence directions

The appellant argued that the trial judge's use of the phrase "is there a reasonable possibility" when directing the jury on the Crown's burden with respect to self-defence was legally erroneous, following the reasoning in Hadchiti v R [2016] NSWCCA 63 and Moore v R [2016] NSWCCA 185. Hoeben CJ at CL accepted that there was a problem with the impugned formulation in isolation, but examined the directions as a whole. His Honour concluded that, read in their entirety, the directions correctly conveyed to the jury that the Crown bore the burden of proving beyond reasonable doubt that the appellant did not believe his actions were necessary in self-defence. Leave to appeal was granted on this ground, but the appeal was dismissed. Alternatively, his Honour held that even if the directions had been erroneous, the proviso under s 6 of the Criminal Appeal Act 1912 would apply: given the overwhelming evidence and the limited factual basis for self-defence, no substantial miscarriage of justice could have resulted.

Ground 2: Order of directions (self-defence before intent)

The appellant argued that the trial judge should have directed the jury to resolve the question of intent before considering self-defence, because a finding that the appellant lacked the relevant intent would have made the self-defence analysis unnecessary. This ground had not been raised at trial. Hoeben CJ at CL refused leave under r 4 of the Criminal Appeal Rules, finding no arguable case of error and no miscarriage of justice. His Honour noted that the order in which defences are presented to a jury is not a matter of strict legal requirement, and that the sequencing adopted by the trial judge was not contrary to law. Significantly, defence counsel had expressly conceded intent in the final address to the jury, which further undermined any suggestion that the order of directions had disadvantaged the appellant.

Orders Made

  • Ground of Appeal 1: Leave to appeal granted; appeal dismissed.
  • Ground of Appeal 2: Leave to raise this ground refused pursuant to r 4 of the Criminal Appeal Rules.

Key Takeaways

  • Jury directions on self-defence must be assessed as a whole, not by isolating individual phrases. A formulation that is problematic when read in isolation may nonetheless correctly convey the Crown's burden beyond reasonable doubt when the full charge is considered.
  • The Court of Criminal Appeal confirmed that the principles in Hadchiti v R and Moore v R concerning self-defence directions remain applicable, but do not automatically result in a successful appeal where the directions, taken as a whole, adequately communicated the correct legal standard.
  • Where a ground of appeal was not raised at trial, leave under r 4 of the Criminal Appeal Rules requires the appellant to demonstrate an arguable case of error or a miscarriage of justice. This is a demanding threshold, particularly where no direction was sought from the trial judge.
  • No fixed rule requires a trial judge to direct a jury on intent before self-defence. The sequencing of jury directions does not, of itself, constitute legal error.
  • In dismissing the appeal, the court also applied the proviso under s 6 of the Criminal Appeal Act 1912, finding that even if the directions had been erroneous, the strength of the prosecution case and the appellant's own concessions made a substantial miscarriage of justice unlikely.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 419
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 4

Cases:
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
- Budrodeen v R [2014] NSWCCA 332
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- Green v R [1971] HCA 55; 126 CLR 28
- Greenhalgh v R [2017] NSWCCA 94
- Hadchiti v R [2016] NSWCCA 63; 93 NSWLR 671
- Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544
- Kalbasi v The State of Western Australia [2018] HCA 7
- Kanaan & Ors v R [2006] NSWCCA 109
- McKinney v The Queen; Judge v The Queen [1991] HCA 6; 171 CLR 468
- Mencarious v R [2008] NSWCCA 237
- Moore v R [2016] NSWCCA 185
- Murray v The Queen [2002] HCA 26; 211 CLR 193
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- R v ARS [2011] NSWCCA 266
- R v Katarzynski [2002] NSWSC 613
- Stanton v The Queen [2003] HCA 29; 77 ALJR 1151
- The Queen v Dookheea [2017] HCA 36; 91 ALJR 960
- Thomas v The Queen [1960] HCA 2; 102 CLR 584