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Court of Criminal Appeal 18 March 2019

Biles v R

[2019] NSWCCA 52

HomicideDomestic & family violence
CRIME APPEAL AGAINST CONVICTION MURDER ADMISSIONS BY APPELLANT WHETHER VERDICT UNREASONABLE RULE 4

Citation: Biles v R [2019] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 18 March 2019
Judges: Hoeben CJ at CL, Price J, Davies J

Background

The appellant was convicted of murder following a trial before Fagan J in February and March 2017. The deceased was the appellant's domestic partner of approximately two to three years. On 25 April 2015, following a verbal and physical altercation at a flat in Brewarrina, the appellant dragged the deceased into a bedroom, where she sustained fatal injuries.

The Crown's case was that the appellant inflicted multiple forceful blows to the deceased's head and jaw over approximately 30 minutes, with the intention of causing her really serious harm. Multiple witnesses gave evidence of hearing prolonged screaming from the bedroom. When police arrived, the appellant emerged with blood on his hands, forearms, clothes, and feet. The deceased was found unresponsive with extensive head injuries.

The jury convicted the appellant of murder and he was sentenced to 24 years' imprisonment with a non-parole period of 18 years. He sought leave to appeal against conviction on three grounds.

  • Whether the murder verdict was unreasonable, in that no reasonable jury, properly instructed, could have returned it on the evidence
  • Whether the trial judge erred by failing to direct the jury to identify which specific act or acts of the appellant caused death, and whether the requisite intent (to cause death or really serious bodily harm) existed at the time of that act or those acts
  • Whether the trial judge erred by failing to direct the jury that, if there was a reasonable possibility the blows the appellant admitted to striking were the traumatic cause of death, the appellant was entitled to an acquittal for murder

Decision

Ground 1: Unreasonable verdict. The Court rejected this ground. Applying the principles in The Queen v Hillier and The Queen v Baden-Clay, the question was whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The Court found that the jury was entitled to reject the appellant's account that he struck the deceased no more than three times. The physical evidence from the bedroom, including blood spatter, the state of the mattress, and drag marks, together with eyewitness accounts of the prolonged incident and the nature and extent of the deceased's injuries, supported the jury's findings. Davies J, in a separate observation, agreed that the jury could properly reject the appellant's limited account of the blows he struck and accept the Crown pathology evidence on cause of death.

Ground 2: Failure to direct on identifying causative act and concurrent intent. The Court also rejected this ground. The Crown's case was not presented on the basis of a single discrete act but as a sustained assault over approximately 30 minutes. In those circumstances, the Court was not persuaded that a specific direction requiring the jury to isolate a particular act and assess intent at that precise moment was required. No miscarriage of justice arose from the absence of such a direction on the facts of this case.

Ground 3: Failure to direct on the effect of the appellant's admitted blows. The appellant argued that because he admitted to striking the deceased a small number of times, the trial judge should have directed the jury that if those admitted blows were the traumatic cause of death, he was entitled to an acquittal for murder. The Court rejected this argument. The admitted blows were part of the same continuing assault that the Crown relied upon. There was no basis on the evidence to treat the admitted strikes as a separate and distinct set of acts standing apart from the broader assault, and accordingly no separate direction of that kind was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict challenge requires the appellate court to assess whether it was open to the jury to reach the verdict on the whole of the evidence, not merely whether the court itself would have reached the same conclusion.
  • Where a Crown case rests on a sustained course of violent conduct rather than a single discrete act, the trial judge is not necessarily required to direct the jury to identify a specific causative blow and assess whether the requisite murderous intent existed at the precise moment that blow was struck.
  • No obligation arose on these facts to direct the jury that an acquittal for murder was required if the blows the appellant admitted striking were possibly the traumatic cause of death, because those admitted blows formed part of the same continuing assault as the unadmitted conduct.
  • Physical evidence from the crime scene, including blood spatter and the condition of the room, can properly support a jury's rejection of an accused's limited account of the violence inflicted, even where that account involves some admissions of wrongdoing.
  • A failure to give a particular jury direction does not automatically produce a miscarriage of justice; the appellate court examines whether the omission deprived the accused of a real chance of acquittal in the context of the whole trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Rules, r 4

Cases:
- ARS v R [2011] NSWCCA 266
- Lane v The Queen [2018] HCA 28; (2018) 357 ALR 1
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201
- R v PL [2009] NSWCCA 256; (2009) 199 A Crim R
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Sio v R [2015] NSWCCA 42
- The Queen v Baden-Clay (2016) 258 CLR 208; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13