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Court of Criminal Appeal 8 December 2021

Beattie v R

[2021] NSWCCA 291

Assault & violenceHomicide
CRIMINAL PROCEDURE TRIAL DIRECTIONS TO JURY MISDIRECTION

Citation: Beattie v R [2021] NSWCCA 291
Court: Court of Criminal Appeal, NSW
Date: 8 December 2021
Judges: McCallum JA; Walton J; Fullerton J

Background

The appellant was convicted of murder following a three-week trial in the Supreme Court of NSW in March 2015. The central facts were not disputed: after consuming approximately 30 to 40 alcoholic drinks and various drugs over roughly 18 hours, the appellant assaulted his close friend, who died in hospital about a week later. The appellant pleaded guilty to manslaughter in the presence of the jury, but the Crown did not accept that plea, and the case proceeded on a charge of murder based on an alleged intention to cause really serious bodily harm.

The appellant's case at trial was that extreme intoxication had deprived him of the cognitive capacity to form the requisite intent. He gave evidence that he had no memory of the assault or the surrounding events. The jury deliberated for two days before returning a guilty verdict, and the appellant was sentenced to 20 years' imprisonment with a non-parole period of 15 years.

The appeal, brought more than five and a half years out of time, raised a single ground: that the trial judge's directions to the jury amounted to a misdirection by improperly requiring the jury to determine an intermediate factual question about the degree of intoxication, rather than directing them to consider whether the Crown had excluded the reasonable possibility that the appellant lacked the intent to cause really serious harm.

  • Whether the trial judge's summing-up effectively misdirected the jury by interposing an intermediate fact-finding requirement, thereby diverting them from the correct onus and standard of proof on the intoxication defence.
  • Whether any such misdirection, assessed by reading the directions as a whole, resulted in a miscarriage of justice.
  • Whether the significant delay in filing the appeal (over five and a half years out of time) should be excused so as to permit the appeal to proceed.

Decision

The Court granted the extension of time, accepting that the delay was substantially attributable to inaction by the appellant's former solicitor over a period of approximately two years, combined with subsequent difficulties in obtaining legal aid. The Court noted that delay caused by a lawyer's neglect should not operate to the prejudice of a convicted person with arguable grounds.

On the substantive ground, the Court accepted that certain phrases in the trial judge's summing-up, read in isolation, were capable of supporting the appellant's argument. However, the Court declined to assess those phrases in isolation. The proper approach required consideration of the summing-up as a whole, and the Court was not persuaded that a jury would have understood the directions collectively as conveying the misdirection alleged.

The trial judge had repeatedly emphasised that the "central question" was whether the prosecution had proved beyond reasonable doubt that the appellant possessed the intention to cause really serious physical injury at the time of the assault, notwithstanding his intoxication. The jury was also directed that evidence of intoxication could point away from the Crown's case on intent, and that the onus remained on the Crown throughout. Those directions were consistent with the relevant authorities.

The absence of any objection by defence counsel at trial to the impugned directions was noted as a consideration suggesting there was no lack of clarity about the central point at the time. The Court concluded that no miscarriage of justice had been established, and that the appellant had not lost a real chance of acquittal.

Orders Made

  • Time extended for filing the notice of appeal to 20 April 2021.
  • Leave to argue the ground of appeal refused under r 4 of the Criminal Appeal Rules 1952 (NSW).
  • Appeal dismissed.

Key Takeaways

  • Jury directions on intoxication and intent must be assessed as a whole, not by isolating individual phrases. Passages capable of supporting a misdirection argument will not be decisive if the summing-up, read in its entirety, correctly conveyed the applicable onus and standard of proof.
  • Where a murder charge turns on intoxication negating intent, the correct direction requires the jury to consider whether the Crown has excluded the reasonable possibility that the accused lacked the capacity to form the relevant intention, with the onus remaining on the prosecution throughout. This principle flows from R v O'Connor (1980) 146 CLR 64 and R v Coleman (1990) 47 A Crim R 306.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of any objection by trial counsel to impugned directions is a relevant (though not conclusive) consideration when assessing whether those directions caused genuine confusion for the jury.
  • Significant delay in filing an appeal attributable substantially to a solicitor's neglect will not automatically defeat an application for an extension of time, where the convicted person made reasonable inquiries about progress and was not accurately informed of the true position.
  • A miscarriage of justice requiring the Court to intervene must be one in which the applicant lost a real chance of acquittal. Theoretical or speculative misdirection, unsupported by the summing-up read as a whole, does not meet that threshold.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules 1952 (NSW), rr 3B and 4

Cases
- Greenhalgh v R [2017] NSWCCA 94
- Obeid v R [2017] NSWCCA 221
- R v Coleman (1990) 47 A Crim R 306
- R v Hayes [2008] QCA 371
- R v O'Connor (1980) 146 CLR 64; [1980] HCA 17
- R v Ogunseye [2021] QCA 192
- Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9