R v Schonewille Westlaw AU PDF

Preview

Summary

Download R v Schonewille Westlaw AU PDF

Description

01/03/2021

R v Schonewille | Westlaw AU

 Browse 



Search within the document

C

R v Schonewille

FirstPoint

[1998] 2 VR 625

Citing References



HEADNOTE

SUPREME COURT OF VICTORIA

R v SCHONEWILLE 6, 7 October, 16 October 1997

Criminal law — Murder — Intent — Evidence — Inference — Burden of proof — Direction to jury.

The accused was charged with the murder of a 61 year old woman. He was 15 years old at the time of the killing and stabbed the victim in the course of robbing her. His defence to the charge of murder was that he had acted without intent to cause death or grievous bodily harm and he pleaded guilty to manslaughter. The accused did not give evidence at trial but relied on statements which he had made to the police in the course of interviews. The trial judge directed the jury that, in considering what inference to draw as to the accused's intent, the matters they could consider included the credibility of the accused's account given to the police and whether they accepted or had reservations about what he said was his intention at the relevant time. In redirecting the jury following a question, the judge said that “one normally intends the consequences of one's act”. The accused was convicted of murder and applied for leave to appeal against conviction on the ground of misdirection of the jury regarding intent.

Held, granting leave to appeal, allowing the appeal and ordering a re-trial: (1) The judge misdirected the jury on intent. His directions did not express to the jury in clear terms that the burden was upon the Crown to prove beyond reasonable doubt that the only inference open from the facts, as found, was that, at the time when he stabbed the deceased, the accused had the intention to kill her or inict grievous bodily harm and that if anything which the accused said to the police caused them to have reservations about drawing such an inference, the benet of such doubt should go to the accused. The direction was likely to leave the jury with the impression that it was up to them to determine what reasonable inference they could draw from the evidence and that, furthermore, they could draw an inference of murderous intent if they were unable to accept without reservation the account which the accused had given to the police about his stated intention. Such an impression would have led the jury to adopt an entirely erroneous approach involving an inversion of the onus of proof. R. v Calides (1983) 34 SASR 355referred to R. v Holman [1997] 1 Qd. R 373referred to (2) It was inappropriate for the judge to direct the jury that “one normally intends the consequences of one's act”. In cases where specic intent is an ingredient of the crime alleged, it is wrong for trial judges to tell juries that there is a presumption that a person intends the natural consequences of his or her acts. Parker v R. (1963) 111 CLR 610applied













https://www-westlaw-com-au.ezproxy.lib.uts.edu.au/maf/wlau/app/document?docguid=I13d7ba1165c011e6881a84759648e093&isTocNav=true&tocDs=AUNZ…

1/7

01/03/2021

R v Schonewille | Westlaw AU

Application for leave to appeal This was an application for leave to appeal against conviction for murder. The facts are stated in the judgment of Winneke A.C.J. P. G. Priest for the applicant. J. D. McArdle for the respondent. 



JUDGMENT Winneke ACJ In the morning of 19 May 1994 Ann Marie Taylor was stabbed to death in the oce of a garden nursery, of which she was co-proprietor, in Switchback Road, Churchill. The deceased was a woman of 61 years, had been married for over 30 of those years, was a mother and grandmother. Her death, and the cruel manner in which it occurred, has not surprisingly caused extreme and long-lasting grief among members of her family and friends.

The applicant admitted that he caused the death. At the time when he did so he was a young boy of 15 years of age living with his mother and sisters in Churchill. He had no prior convictions and it would seem, in the absence of his father was much relied upon by his mother to look after her and his sisters. Following the killing he was quickly apprehended by police and, during the course of interviews, admitted his part in the homicide but denied any intention to kill or do serious injury. The applicant was presented for trial in the Supreme Court on the single count of murder. On 28 November 1994 he was arraigned and pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept the plea to the lesser oence and the trial proceeded on the count of murder. On 30 November 1994 the jury returned a verdict of guilty. Because of the applicant's young age the imposition of a suitable sentence became a problem for the trial judge because there was no provision in the relevant legislation which enabled him to impose a long-term sentence of imprisonment to be served otherwise than in an adult prison. With the concurrence of counsel for the applicant, his Honour on 12 December 1994 adjourned the matter of sentence for further consideration and remanded the applicant in custody to a Youth Training Centre. In the meantime the applicant spent some three years at the Juvenile Justice Centre whilst reports were obtained and recommendations were being made suggesting changes to the Children and Young Persons Act 1989 to give power to the Adult Parole Board to direct that persons of qualifying age and circumstances serve their sentences or portion of them in Youth Training Centres. Parliament has apparently acted on these recommendations: ss. 244, 244A and 244B of the Children and Young Persons Act 1989, amended by Act No. 44 of 1996. Accordingly on 14 March 1997 the learned judge called up the applicant for sentence. His Honour imposed a sentence of 12 years’ imprisonment and directed that the applicant serve a minimum of eight years before being eligible for parole. He declared that the applicant had been detained in presentence custody for 1028 days. Although one can sympathise with the motives for the delay in sentencing the applicant, it is clear that long delays between conviction and sentence can compromise the appellate process because, in normal circumstances a convicted person will not have a right to apply for leave to appeal his conviction until sentence has been passed: s. 572 of the Crimes Act 1958; R. v De Marchi [1983] 1 VR 619. However it can scarcely be contended in this case that any injustice has owed to the applicant because the delay was for his benet and, indeed, was with his consent. No criticism can or should attach to the trial judge. Furthermore the applicant had, at trial, conceded his guilt of manslaughter. This is not, however, to say that lengthy delays between conviction and sentence are to be encouraged. Not only do such delays, in normal circumstances, have the capacity to engender feelings of injustice in a person who believes he has been wrongly convicted, but they will ordinarily cause unacceptable prejudice if the application for leave to appeal is successful and a verdict of acquittal entered or a new trial is ordered.

Facts Before turning to the grounds of the application for leave to appeal against conviction it is desirable to advert to the facts of the case, which are as brief as they are distressing. Many, if not most of those facts are to be gleaned from the various interviews, both sound and video recorded, which the police ocers conducted with the applicant some three days after the killing had occurred. In those interviews, the applicant conceded that on the morning of the killing he had prepared himself for a day at school but, instead of going there, had taken himself on his bicycle down the Switchback Road towards the deceased's nursery. On his way out of his house he had taken from a caravan in the rear of the premises a small black-handled knife which appears to have belonged to his uncle. He rode his bike to a bridge apparently in the vicinity of the nursery where he had spent approximately one hour skinning and shaping limbs of saplings with the knife. He took with him one of these pieces of wood and cycled down to the vicinity of the nursery intent, so it would seem, on stealing money if the occasion presented itself. He stopped some 20 metres from the nursery watching to see whether the deceased, who was at the time the sole occupant, would leave the oce and go to the back of the premises. He apparently saw the deceased leave the oce and move to the rear of the nursery to water plants. He then entered the premises and made his way to the oce. He discarded the stick he had carried and took only the knife. He was looking for cash when he heard the deceased returning. He hid behind the front counter, but inevitably was seen. The deceased, he said, commenced to scream and took hold of a piece of wood with which she attempted to strike him, breaking a window in the process. She then picked up a telephone and the applicant, fearful that he was about to be exposed grabbed the telephone from her and threw it to the oor. The deceased, he said, then advanced upon him again with the piece of wood and he wrestled with her to the oor. In the process the knife tumbled from the pocket in his jumper. He said he grabbed it and, in the heat of the moment, struck her one blow in the back with the knife not intending, as he said, to kill her but rather to stun her. He then got to his feet and started to back away from her. He said the deceased got to her feet but collapsed, bleeding from the mouth. He went to her handbag and took $200 from it, and then left the premises,













https://www-westlaw-com-au.ezproxy.lib.uts.edu.au/maf/wlau/app/document?docguid=I13d7ba1165c011e6881a84759648e093&isTocNav=true&tocDs=AUNZ…

2/7

01/03/2021

R v Schonewille | Westlaw AU

abandoning the mortally wounded Mrs. Taylor. He threw the knife onto the roof of the oce and rode his bike to school, where he arrived at about recess time. He remained at school for the remainder of the day. He later spent some $100 of the money which he had stolen on various items including “basketball swap cards” which appeared to have been an almost obsessive habit. At the trial, the only real issue in contest between the Crown and the applicant was the intent with which the applicant had stabbed the deceased. It might have been thought, on the evidence which I have recited, that the case against the applicant was indeed a powerful one. But no doubt the jury regarded his youth a signicant factor. The applicant gave no evidence but strongly relied on the statements which he had made to the police in the course of the interviews to which I have referred. It was contended, on his behalf, that at no time had he formed any relevant intention to kill or cause grievous bodily harm. In contradistinction the Crown invited the jury to infer such intent from the obvious planning, the taking of the knife, the motive, the desire not to be identie d and the nature of the act which caused death.

The course of the trial

The trial was commendably brief. The applicant was arraigned on 28 November 1994 and verdict was returned on 30 November 1994. The only issue for the jury's consideration, as I have said, was whether the Crown had established the relevant intention on the part of the accused to support the charge of murder. Counsel for the Crown contended that it had; counsel for the applicant contended that it had not and that the appropriate verdict should be one of manslaughter by unlawful and dangerous act. Because the real issue was conned in the manner stated, the prosecutor was able to inform the learned judge that he was accordingly relieved of the obligation to call a number of witnesses. He said:

“If we get to the real issue, which I told the jury was really the intent of the accused at the time of the stabbing, we will conne it to that.” Following addresses by counsel and a summing up by the judge, the jury retired to consider their verdict at 11.45 a.m. on 30 November 1994. Counsel for the applicant took an exception to a portion of his Honour's directions relating to the manner in which the judge had told the jury they could use the answers given by the applicant to the police in determining the issue of intent. His Honour declined to redirect. Those directions are the subject of ground 1 of the application for leave to appeal, to which I shall refer hereafter. At about 3.30 p.m. on 30 November 1994 the jury returned with a question asking his Honour to “clarify the meaning of intention and inference and time scales”. His Honour redirected in a manner to which I will later return. Counsel for the applicant took exception on the ground that his Honour's redirection as to the manner of drawing inferences did not go far enough and that it compounded the erroneous direction to which he had earlier taken exception. Otherwise no exception was taken. His Honour again declined to redirect. At 4 p.m. the jury returned with a verdict of guilty of murder.

Grounds of appeal

Mr. Priest, who appeared for the applicant before this court, has taken two grounds, each of which contends that his Honour materially misdirected the jury in relation to the onus of proof; directions which counsel submitted were critical in the context of the narrow issue in the trial: (a) First, he contended that his Honour had misdirected the jury as to the manner in which they could use the answers given by the applicant to the police. It was submitted that these directions had, in substance, inverted the onus of proof and failed to adequately inform the jury as to the nature of their task. (b) Secondly, Mr. Priest submitted that, in redirecting the jury, following their question, his Honour had materially misdirected the jury by telling them that “one normally intends the consequences of one's act”. This direction, he contended, had compounded the deciency in the earlier direction. In the course of giving his initial instructions to the jury, his Honour reminded them that the real issue in the case was the intention of the applicant at the time when he stabbed the deceased. He then told the jury that the Crown must prove that the accused intended to kill the deceased or to do her grievous bodily harm. He further told them that the Crown could prove the relevant intention from inferences drawn from surrounding facts as well as from the act causing death itself. He continued:













https://www-westlaw-com-au.ezproxy.lib.uts.edu.au/maf/wlau/app/document?docguid=I13d7ba1165c011e6881a84759648e093&isTocNav=true&tocDs=AUNZ…

3/7

01/03/2021

R v Schonewille | Westlaw AU “The nal addresses that you have heard so recently have all f ocused on that issue — what was the intention of the accused at the time that the deceased was stabbed? You have got to decide what, if any, reasonable inference as to intent you can draw from the evidence. Matters that you might turn your mind to would include how credible did you nd the account of the accused which you heard and saw on the recordings and which you will be able to hear and see again in the jury room? Do you accept everything that the accused said during those interviews or do you have reservations about some parts? Do you accept or do you have reservations about what the accused said as to his intention at the relevant time when he was answering questions during those interviews? What inference, if any, do you draw from such matters as the preplanning the night before and on that morning at the bridge and opposite the nursery; from the accused having taken a knife into the nursery; from his decision to leave the stick outside; from his choice not to run out of the oce; from the nature and the location of the stab wound; from his actions, including the taking of the money from the deceased's handbag after the stabbing? What allowance do you make for the age of the accused when considering this issue of intent?”

Mr. Priest submits that these passages were apt to convey to the jury the impression that the applicant bore the onus of disproving intent. He contended that to ask the jury to consider whether they “accepted everything which the accused said” during his interviews or whether they had “reservations about some parts” was to invite the jury to convict the accused if they had reservations about his account. This, he said, was reinforced when the judge again posed for the jury the question “do you accept or do you have reservations about what the accused said as to his intention at the relevant time …”. Mr. Priest submitted that, in the context of a case where the only issue was the conned one of intention, it was a material error for the judge to focus on the statements made by the applicant to the police and to imply that guilt could be inferred if they had reservations about those statements as to his intention. Mr. Priest contended that this was akin to inviting the jury to consider “where the truth lies” between two competing versions: see R. v Calides (1983) 34 SASR 355 at 358-9; R. v George [1980] Qd. R 346. It is, of course, true that in a case like this where the only issue which had to be determined by the jury (namely the issue of the accused's intent) was one which depended upon competing inferences, it was incumbent upon the trial judge to direct the jury in clear terms that, before they could convict the accused, they would have to be satised beyond reasonable doubt that at the time when he stabbed the deceased it was the accused's intention to kill her or cause her really serious injury and that, if the jury were left in a state of reasonable doubt as to whether such an intent existed, they were bound to acquit him. Cases where the issue is a narrow one, and the accused is relying upon statements previously made to rebut inferences contended for by the Crown, raise peculiar problems for the trial judge. The natural tendency is for the trial judge to invite scrutiny of those statements to determine whether they provide an appropriate foundation for the contention which the accused is making. However the process lends itself to reasoning from a lack of satisfaction with the applicant's explanations to a satisfaction of guilt on his part: cf. R. v Neilan [1992] 1 VR 57 at 67. It is, of course, natural to reason in that way but it cannot be permitted to obscure the requirement that every element of the oence must be proved by the Crown beyond reasonable doubt. The danger of inviting the jury to focus on the account of the accused and to ask themselves “how credible” they nd that account and whether they “accept everything that the accused has said” or whether they “have reservations about some parts”, and whether they “accept or … have reservations about what the accused has said as to his intention at the relevant time” is that such invitations do tend to suggest to the jury that the accused has some obligation to exculpate himself from the allegation made against him and, thus, create in the jury's mind the impression that there is an onus of proof on the accused. It is not without signicance, as Mr. Priest pointed out, that at the conclusion of his Honour's charge, experienced counsel for the accused took exception to this portion of it. Counsel said that:

“To say to a jury that they may accept what the accused says or they may have reservations about it … reverses the onus of proof. They do not have to accept at all what he says. It implies that there has to be a degree of positive belief in what he says. In my submission that is a balance of probabilities concept and is not applicable in a criminal trial.” In response to the arguments of Mr. Priest, Mr. McArdle who appeared for the Crown in this ...