Hoskins v R [2014] NSWCCA 207

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hoskins v R [2014] NSWCCA 207 Hearing dates: 27 August 2014 Decision date: 07 October 2014 Before: Leeming JA; Adams J; Fullerton J Decision: Appeal dismissed Catchwords: CRIMINAL LAW - murder - joint criminal enterprise - whether manslaughter should have been left open to the jury - whether not open to jury to find mental state other than participation in joint criminal enterprise to cause grievous bodily harm - appeal dismissed Legislation Cited: Criminal Appeal Rules, r 4 Evidence Act 1995 (NSW), s 191 Cases Cited: Beavan v The Queen (1954) 92 CLR 660 at 662 Burns v The Queen [2012] HCA 35; 246 CLR 334 Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim 201 James v R [2014] HCA 6; 88 ALJR 427 Lane v R [2013] NSWCCA 317 R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 Category: Principal judgment Parties: Darren Hoskins (Appellant) Regina (Respondent) Representation: Counsel: S Odgers SC (Appellant) S Dowling SC (Crown) Solicitors: Matouk Joyner Lawyers (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/18351 Decision under appeal Date of Decision: 2013-03-26 00:00:00 Before: Grove AJ File Number(s): 2011/18351

Judgment 1THE COURT: The sole ground of this appeal against the appellant's conviction of the murder of Jamie Lefoe on 18 January 2011 is that: "The trial judge erred in failing to direct the jury with respect to an alternative verdict of manslaughter." 2The appellant was one of a number of men who attacked the victim, who died from the injuries inflicted by them. Four men, Sean Sutcliffe, Michael Brown and Darrin Moulds, together with the appellant Darren Hoskins, stood trial charged with murder. The Crown case was that they were part of a joint criminal enterprise to kill or inflict grievous bodily harm on the deceased. 3On at least two occasions during the 28 day trial before Grove AJ and a jury of 12 (day 14, T771.3, and day 15, T850.6), the trial judge raised whether manslaughter ought be left open to the jury. The appellant, and two of his co-accused, were separately represented by senior counsel. The fourth co-accused was represented by junior counsel. None of the counsel for the accused submitted that it should. The trial judge then indicated that he would not leave manslaughter open to the jury. No counsel made any submission to the contrary. 4Senior counsel for the appellant (who did not appear at the trial) properly acknowledged that r 4 of the Criminal Appeal Rules applied, no point having been taken below. However, he submitted that leave should be granted if he could demonstrate that there was an error leading to a miscarriage of justice: see the authorities in Carney v R; Cambey v R [2011] NSWCCA 223; 217 A Crim 201 at [67]. So much is consistent with what was recently said in James v The Queen [2014] HCA 6; 88 ALJR 427 at [31]-[32]. As much was accepted by the Crown. 5The appellant contended that although he had participated in a joint criminal enterprise to inflict harm on the deceased, it was open on the evidence for the jury to find that he had not participated in a joint criminal enterprise to inflict grievous bodily harm or death. In that event, it was open for the jury to find the appellant guilty of involuntary manslaughter through having engaged in an unlawful and dangerous act carrying with it an appreciable risk of serious injury: Burns v The Queen [2012] HCA 35; 246 CLR 334 at [6]-[7]; Lane v R [2013] NSWCCA 317 at [54]-[57]. 6Manslaughter should be left for the determination of the jury if there is evidence to support such a verdict. That turns on whether manslaughter is a "viable" alternative verdict: see R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527 at [75]; Lane at [42] and [66]. If there is evidence to support an alternative verdict, and the judge has not left it to the jury, then there has been an error of law. (It follows that the appellant's appeal to this Court is as of right.) 7The Crown submitted that there was insufficient evidence to support a verdict of involuntary manslaughter; it said that there was no factual foundation for inferring in the appellant any intent other than to participate in an assault with the intention of causing death or grievous bodily harm. Alternatively, the Crown submitted that the proviso should be applied because no substantial miscarriage of justice had actually occurred. 8In such cases, it would ordinarily be necessary to review, in some detail, all of the evidence at the trial. However, as will be seen below, an abbreviated course is available to resolve this appeal. 9The following four facts were agreed (pursuant to s 191 of the Evidence Act 1995 (NSW)). In December 2010 a car was stolen from a shed at Cattai. On 16 January 2011, the car was (re)stolen from a carport in Ambarvale. On the morning of 17 January 2011, two vehicles (at two separate addresses) were set alight. One was owned by the mother of the deceased, the other was owned by an associate of the deceased. 10There was no dispute as to the following facts (which are provided by way of overview). The deceased believed that Sean Sutcliffe was involved in burning the cars. On 18 January 2011, the deceased went to Sean Sutcliffe's house to confront him about it. Sutcliffe was not at home, but learnt that he had visited, and was told that the deceased had a gun. The deceased returned at around 9pm on 18 January to Sutcliffe's house, whereupon eight men were summoned, including the four co-accused who stood trial. The deceased discharged his pistol repeatedly, one of the bullets grazing Darrin Moulds' head. The deceased then ran away. A group of men pursued the deceased, brought him to the ground, and beat and stabbed him. His head was beaten with a blunt instrument, there were cuts to the bone on his left leg and wrist, and two deep stab wounds to his back. He died of those wounds. 11The Crown case included the evidence of a witness, Mark Reid, who said he saw Sean Sutcliffe and Darren Hoskins, one with a bar, the other with a machete, each hitting the deceased who was lying on his back at the time. However Mark Reid conceded in cross-examination that he was affected by alcohol and prescription medication at the time, that it was dark and that his vision was impaired. The Crown did not dispute that the jury could reject that evidence. 12The appellant did not give evidence at the trial. Nor did the other co-accused. Tendered against him was an electronically recorded interview he gave to police, commencing at 12.39am on 19 January 2011 in the immediate aftermath of the attack. 13During his interview, the appellant said that he had been told that day that the deceased had said "they've got guns and they were going to use them" (A.706). There was a deal of evidence about how the appellant and a group of men arranged amongst themselves to arrive at Sutcliffe's house to confront the deceased, which it is not necessary, for present purposes, to recount. 14The appellant was armed with a miniature wooden baseball bat (approximately 60cms long). At the forefront of the appeal was the submission that it was open to the jury to find that the appellant was unaware that one of the group was armed with the knife or machete which caused the most serious injuries to the deceased. 15It may be acknowledged that there is some equivocation in the answers given by the appellant to police on this point. He said: "I don't know which one it was ... but one of them had a machete and they were swinging. And ... I got to probably near the driveway and I slipped and the guy fell down and I fell on top of him." (A.52) 16When the men were pursuing the victim, the appellant said that he "dropped my bat and I stopped and they all kept running" (A.228). He was then asked: "Q. And is [that bat] the only weapon that, apart from the gun, is that the only weapon that you've seen at this stage? A. No, somebody had a machete." (A. 231) 17He said that one of the three men running in front of him had a machete. He then said that someone yelled "machete" and was asked "did you actually see a machete?" and answered "no, not really" (A.247). When he was reminded that previously he had said that he had actually seen the machete, he said: "A. I thought, well, I've got to be honest there, I heard them say it so, you know. Q. Alright. So did you or did you not see a machete at any stage? A. I didn't see, no, I heard somebody say it." (A.250) 18At A.275, the appellant said "there was somebody swinging, I don't know if it was Darren or Mick, ... I believe it was Mick. ... Q. And what was he swinging? A. I believe it was a machete." However, the appellant said that he did not see the machete. 19The appellant accepted that he tackled the deceased, and agreed that that was the purpose that he was chasing him for (Q.294), as he said "to try and, you know, take his gun" (A.295). 20It was open to the jury to find that the appellant did not himself wield the bat so as to inflict grievous bodily harm, although there was evidence that the deceased's blood was on the bat. He gave these answers (at A.422 and 423): "Q. Did you use that bat at any stage? A. I tried to swing it but I missed. Q. OK so ... A. Or if I did hit, it was just like a scrape along ... " 21Although the deceased's blood was found on the baseball bat, it was open to the jury to find that the appellant had not himself used it to attack the deceased. 22To return to the knife or machete which was used (and which was not recovered), there had been some evidence about what was held by Michael Brown, to which the interviewing officer returned: "Q. You say you saw something in Mick's hand which is about thirty to forty centimetres in length. A. Yep, a bent looking shape. Q. A bent looking shape. But you can't say exactly what it is. A. No. Q. All right. Did it look more like a bar or did it look more like some sort of ... A. No, it didn't [look] like a bar. Q. All right. How would you say it looked? A. Thin. Q. Yep. A. Like with a handle like a knife. Q. OK. All right. Did you at any stage have a machete or a knife in your hand? A. No, never. Q. Did you see anyone else apart from Mick have something similar to that, a machete or a knife? A. No, no." 23Ultimately, as will be seen below, the most important evidence was the questions and answers directed to the blood on the appellant: "Q. ... you obviously got blood on you. A. That's right, yes. Q. And that's blood from the person you're struggling with. A. That's it, yep. Q. When did you notice the blood that was on you? A. Well, it felt like, I thought I'd been cut or something ... Q. Yeah. A. ... or, or shot or whatever and when I walked down the street and I noticed it all and they said, "What happened to you?" And I said, "It was, I don't know, it came from him." Q. OK. So when did you notice that he was injured? A. When I was running up the street. Q. What did you notice? A. I could feel the blood hitting me. ... Q. Did you, could you tell roughly where he was being struck? A. No idea. Q. OK. So as you're chasing him he's being struck with obviously ... A. I could feel the blood. Q. ... a machete or a knife. A. Well, I felt the blood, it sort of like, it felt like it sort of sprayed on me sort of thing or ... Q. Got something, something of liquid ... A. ... yeah, something wet, yeah. Q. ... was hitting you. OK. Where did you feel that? A. Ah, first of all on my leg. I thought it was maybe from when, um, you know, I dropped the bat and sort of slipped. Q. So you must have been reasonably close behind him, would you agree? A. Ah, yeah, for sure. Q. How close would you say? A. A metre, maybe a bit more. When I landed like tackled him I felt it straightaway from ... Q. And Mick must have been almost right beside you, he couldn't have been too much in front of you, I mean, if you're ... A. Oh, he was still in front of me. Q. But if you're only a metre behind the bloke that he struck. A. Oh, a metre, oh, probably a metre and metre and half. Q. OK. A. And I've tried to get the, the gun and then went back down the street. Q. How many times did you see Mick swing at the deceased? A. While he was chasing him. Q. Yeah. A. I think three times, twice." 24The appellant contended that some of those answers might have reflected reconstruction by the appellant of what had happened. As it was put in oral submissions: "It becomes apparent very quickly that much of what [the appellant] said in his record of interview was him exercising hindsight, assisting the police by telling them what he thought had happened which is a quite different thing from his awareness at the time." 25In particular, it was said that the answers reflected his after the event knowledge that one of his co-offenders had a knife or machete, and his after the event explanation for why blood was found on his body, so that nevertheless, it remained open for the jury to find that his participation was in a joint criminal enterprise which fell short of one whose purpose was to inflict grievous bodily harm. 26It was then submitted that if the jury had concluded that the appellant was party to a criminal enterprise to cause harm falling short of grievous bodily harm to the deceased, then they might have taken a different view as to whether the appellant was acting in self-defence. It was also submitted that even if two or three of the co-offenders had agreed between themselves to inflict grievous bodily harm or worse, it remained open to the jury to conclude that the appellant had only agreed to inflict violence falling short of that. 27However, in the course of oral argument, the position was refined, culminating in the following exchange in the course of the appellant's reply: "FULLERTON J: Mr Odgers, is it fatal to your case were we to reason to the view that your client did in fact say that he knew Brown was swinging at the deceased with a machete before he was tackled to the ground and close enough to be aware that blood was being shed. Is that fatal to your-- ODGERS: I think I'd probably come close to concede that. FULLERTON J: So it really is a question then for us, without chopping you into a briefer reply, for us to look at what we can conclude from what your client said in his record of interview. ODGERS: And putting it slightly more technically precisely was it inevitable that the jury would have been satisfied beyond reasonable doubt that he was admitting that at the time he was aware that Brown was slashing the deceased with a machete and that he'd actually succeeded in striking him and blood flying. Yes I concede that." Hence the focus on appellant's answers in the record of interview in these reasons. 28We are conscious of the fact that merely reading the transcript of the interview may not fully disclose the full force the evidence would have had upon the jury (who saw and heard it). However, the gravamen of the evidence was that (a) the appellant armed himself prior to the confrontation, (b) he with his co-offenders pursued the deceased after he began to flee, (c) during the pursuit, he saw one of his co-offenders strike the deceased with a knife or machete, repeatedly, inflicting wounds such that the deceased's blood hit him, and (d) the appellant then tackled the deceased, bringing him to the ground, rendering possible the deep stab wounds which caused his death. 29We are likewise conscious that it is no small thing to find that it was not open to a jury to make a particular finding. The issue as framed by Gageler J (dissenting on unrelated grounds) in James v R [2014] HCA 6; 306 ALR 1 at [68], relying on Beavan v The Queen (1954) 92 CLR 660 at 662, was whether "on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder". 30The answers given by the appellant about pursuing the deceased, feeling his blood hitting him when he was struck by his co-offender three times by a knife or machete are reproduced above. At first, aspects of the uncertainty in the answers might arguably support the submission that they did not reflect the appellant's belief at the time, but were infected by what he later learned. We have in mind the evidence that he merely believed there was a machete (which he said he did not in fact see) and, in particular, his answer that at first the appellant believed that the blood on him came from his having been cut or shot ("I thought I'd been cut or something"). However, the long concluding passage reproduced above falls into a different category. In particular, the final questions and answers, to the effect that the appellant saw his co-offender swing at the deceased three times while they were chasing him, and that he felt the blood hitting him, are incapable of sustaining any such explanation. 31The appellant's answers reproduced above do not, on any view of them which might reasonably be adopted, amount to a proper evidentiary foundation for the appellant having a state of mind other than that of awareness that his co-offender was striking the deceased with intent to inflict grievous bodily harm, following which the appellant pursued the deceased and brought him to the ground, enabling further wounds - including those which were fatal - to be inflicted. Contrary to the appellant's submission, those answers cannot be reconciled with an after-the-event reconstruction of events of which he was unaware at the time. 32That evidence leads to a conclusion that the jury would be satisfied beyond reasonable doubt that the appellant was admitting that he was aware that Michael Brown was slashing with a knife or machete, and that he had succeeded in striking the deceased whose blood was hitting him. 33Our conclusion is strengthened by the consideration that counsel representing the appellant at the trial, who were better placed to assess the force of that evidence, made no application to the trial judge, despite the issue being raised squarely, and on two occasions. 34Against all this, counsel for the appellant observed that none of this evidence was raised before the jury by the Crown in closing submissions. That is so. But it does not detract from the force of the appellant's answers. The arguments advanced on this appeal are completely different from trial, where manslaughter was not left to the jury. It follows that it is no answer to the force of the evidence to say that the Crown did not take the jury to it. 35For those reasons, the appeal should be dismissed.