AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 10 July 2019

Martinez v R; Tortell v R

[2019] NSWCCA 153

Assault & violenceHomicide
CRIME CONVICTION APPEAL CONVICTION APPEAL DIRECTIONS CONVICTION APPEAL UNREASONABLE VERDICT

Citation: Martinez v R; Tortell v R [2019] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 10 July 2019
Judge(s): Macfarlan JA (leading judgment); R A Hulme J; Adamson J (both agreeing)

Background

Two men were convicted of murder following a Supreme Court trial concerning the fatal stabbing of a man in the western suburbs of Sydney on 14 February 2015. The incident began with a confrontation outside a residential address and escalated into a street pursuit that ended in the victim's death. The trial ran for nearly six weeks, with the Crown calling 47 witnesses.

Each appellant faced a count of murder and a count of wounding with intent to cause grievous bodily harm. The trial judge also left to the jury a statutory alternative to the wounding count: reckless wounding in company under s 35(3) of the Crimes Act 1900 (NSW). One appellant was convicted of murder and reckless wounding in company; the other was convicted of murder only and acquitted on the wounding counts.

Both appellants challenged their murder convictions on appeal. A central focus was whether the trial judge's directions to the jury were adequate on several discrete legal issues, and whether an alternative verdict of manslaughter should have been left to the jury.

  • Whether the trial judge erred by failing to leave to the jury an alternative verdict of manslaughter based on a joint criminal enterprise to inflict injury falling short of grievous bodily harm
  • Whether the directions on consciousness of guilt evidence were legally adequate
  • Whether the directions on the appellant's silence at trial (where he did not give evidence) were adequate under s 20(2) of the Evidence Act 1995 (NSW)
  • Whether the verdict of reckless wounding "in company" was unreasonable given the co-accused's acquittal on the same charge
  • Whether the jury was properly directed on the meaning of "in company" as an element of the offence under s 35(3) of the Crimes Act 1900 (NSW)

Decision

Manslaughter direction: The Court of Criminal Appeal found that the trial judge erred by failing to leave a manslaughter alternative to the jury on the basis of a joint criminal enterprise to inflict injury falling short of grievous bodily harm. On the evidence, such an alternative was reasonably open to the jury and should have been put to them. This ground succeeded for both appellants.

Consciousness of guilt: The Court found the directions on consciousness of guilt were inadequate. The trial judge had not properly directed the jury on how to approach evidence that might suggest a guilty state of mind, and this constituted a misdirection of sufficient significance to have affected the verdicts.

Silence at trial: The directions given where one appellant did not give evidence were found to be deficient. Under s 20(2) of the Evidence Act 1995 (NSW), a trial judge must direct the jury that it may draw an inference from an accused's silence, but must also appropriately limit and contextualise that direction. The Court found the directions fell short of what was required by the principles in Azzopardi v The Queen and related authority.

Reckless wounding in company and "in company" direction: The Court also identified misdirections regarding the meaning of "in company." Given those misdirections, the Court declined to exercise its power under s 7(2) of the Criminal Appeal Act 1912 (NSW) to substitute a conviction for the lesser offence of reckless wounding, because the Court could not be satisfied the jury's verdict on the wounding element was unaffected by the errors. The appellant was accordingly acquitted of reckless wounding in company, with the Court noting it would be for the Director of Public Prosecutions to decide whether to lay a fresh charge of reckless wounding.

Orders Made

  • Leave to appeal granted to the extent necessary
  • Both appeals allowed
  • Both appellants' convictions for murder (Count 1) quashed
  • Retrials directed on the murder charges
  • First appellant's conviction for reckless wounding in company (statutory alternative to Count 2) quashed
  • First appellant acquitted of reckless wounding in company
  • Matter listed for mention in the Supreme Court Arraignments List on 12 July 2019

Key Takeaways

  • A trial judge's failure to leave a manslaughter alternative to the jury, where such a verdict is reasonably open on the evidence in a joint criminal enterprise case, constitutes reversible error: the obligation to do so was confirmed by reference to Bullard v The Queen and related authority.
  • Consciousness of guilt directions require the trial judge to properly identify the applicable legal principles and direct the jury accordingly; bare or inadequate directions on this topic are capable of vitiating a conviction.
  • Where an accused exercises the right to silence at trial, the directions given under s 20(2) of the Evidence Act 1995 (NSW) must comply with the framework established in Azzopardi v The Queen; inadequate directions on this point can amount to a miscarriage of justice.
  • Under s 7(2) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may substitute a conviction for a lesser offence only where the jury's findings on the facts supporting that lesser offence were unaffected by any identified misdirection; it is not sufficient that a properly directed jury might have reached a particular conclusion.
  • Inconsistent verdicts as between co-accused (one convicted, one acquitted on the same charge) may support a ground that a verdict was unreasonable, but the precise outcome will depend on whether the identified misdirections infected the relevant fact-finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35
- Criminal Appeal Act 1912 (NSW), ss 6(1), 7(2)
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), s 20(2)

Cases
- Alford v Magee (1952) 85 CLR 437
- Azzopardi v The Queen (2001) 205 CLR 50
- Bullard v The Queen [1957] AC 635
- Edwards v The Queen (1993) 178 CLR 193
- Gilbert v The Queen (2000) 201 CLR 414
- Gillard v The Queen (2003) 219 CLR 1
- Huynh v The Queen (2013) 87 ALJR 434
- James v The Queen (2014) 253 CLR 475
- Miller v The Queen (2016) 259 CLR 380
- R v Baden-Clay (2016) 258 CLR 308
- R v Button (2002) 54 NSWLR 455
- R v Nguyen (2010) 242 CLR 491
- OKS v Western Australia [2019] HCA 10