Markby v The Queen [1978] HCA 29

High Court of Australia Gibbs A.C.J. Stephen, Jacobs, Murphy and Aickin JJ. Markby v The Queen [1978] HCA 29

ORDER Application for special leave to appeal granted. Appeal allowed. Order of the Court of Criminal Appeal of New South Wales set aside and in lieu thereof order that the appeal to that court be allowed, set aside the conviction and sentence and order that there be a new trial.

Cur. adv. vult.

The following written judgments were delivered:—

July 25 Gibbs A.C.J.

The applicant, Simon John Markby, and one Stephen Shane Holden were tried together in the Supreme Court of New South Wales on a charge of murdering one Ottmar Syrch. Each accused was convicted of murder. An appeal by the applicant to the Court of Criminal Appeal was dismissed. Application is now made for special leave to appeal to this Court.

The evidence showed that the two accused men met Syrch by arrangement near Centennial Park in the early morning of 23rd November 1975. At the suggestion of Holden, the applicant carried in a travel bag a dismantled rifle with a loaded magazine. According to the applicant the purpose of the meeting was to do a deal with Syrch, who hoped to buy from Holden a quantity of marijuana for $3,000. The Crown case was that the accused men intended to rob Syrch of the $3,000 and kill him. Syrch had driven to the meeting place in a panel van, and the two accused men left him there for a short time under the pretence of getting the drugs, but in fact to assemble the rifle. They returned to the panel van, Holden now carrying the rifle. The applicant began to speak to Syrch when the rifle which was held by Holden was discharged and Syrch was shot in the head at close range. The wound caused by the shot was capable of causing death, but it was a question for the jury whether it did so, and if so how long it took for Syrch to die. The accused men then drove to Matraville, taking Syrch with them. On the way four more shots were fired into Syrch's head. The applicant gave evidence at the trial, in the course of which he said that he drove the car, and that Holden fired the shots. Holden, on the other hand, in an unsworn statement, denied that he fired any of the shots except the first, which he said was accidental. The accused men left the body of Syrch at Matraville, after taking the $3,000 which they later divided between themselves.