On 20 July 2013 Mr Frail went to a party at Mr Towney's house in Gildandra, he was drinking and was asked to leave. He l
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Towney v R [2018] NSWCCA 65 [Hoeben CJ at CL, Johnson J, N Adams J] The Court of Criminal Appeal has dismissed an appeal against conviction brought by Mr Trent Towney. On 11 February 2016 a jury found Mr Towney guilty of the murder of John Frail. On 16 February 2016 he was sentenced to imprisonment for 24 years with a nonparole period of 18 years. On 20 July 2013 Mr Frail went to a party at Mr Towney’s house in Gildandra, he was drinking and was asked to leave. He later returned to the party and was met by Mr Towney’s sister and another woman. They told Mr Frail he wasn’t welcome and should leave and when he refused there was pushing and shoving between them. Mr Towney came to the door and confronted Mr Frail, both men took off their shirts and began to fist fight in the front yard until the fight was broken up. Mr Towney then said to Mr Frail “You just wait” and went inside the house and took a 30cm knife from the kitchen. When Mr Towney returned, Mr Frail had left the yard and was walking down the road towards town. Mr Towney ran towards Mr Frail with the knife, stabbed him a number of times and killed him. The issues on appeal were whether the trial judge’s directions in relation to self-defence were erroneous and whether the trial judge erred in directing the jury to answer the question of self-defence before determining whether there was intent to murder. The directions given by the trial judge in relation to self-defence used the language of whether there was a “reasonable possibility” of each of the elements of self-defence. The applicant submitted that the use of this language at various points in written and oral directions made it unclear to the jury that it was the Crown’s onus to disprove self-defence beyond reasonable doubt. The Court found that, contrary to the submissions of the applicant, this case was not analogous to Hadchiti v R [2016] NSWCCA 63. The trial judge in that case expressed all questions in the “reasonable possibility” form with barely a reference to the beyond reasonable doubt standard. There was not the same repetition of the impugned phase here; instead there was a consistent reference to the conventional standard of beyond reasonable doubt. The Court found that this case was more analogous to the directions given in Moore v R [2016] NSWCCA 185, where, despite use of the phrase reasonable possibility, the trial judge had made abundantly clear that the jury had to decide each issue beyond reasonable doubt. The Court found that the directions given by a trial judge and the potential for them to mislead a jury must be considered in the context of the particular trial, and that this was a relatively straightforward trial where there was no positive defence case. The Court was This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
therefore unable to find that, when looking at all of the written and oral directions together, the jury could have had any doubt as to what standard they were to apply when considering the elements of the offences under consideration. If this standard is made clear, there is no principle that it is an error of law for a judge to attempt to explain the meaning of beyond reasonable doubt. The Court then addressed the issue of the proviso, which would be necessary to consider in the event that they were incorrect about their above conclusion. The Court found that the applicant’s self-defence case at trial was a limited one. The defence put evidence that Mr Frail had turned back and moved towards Mr Towney, however Mr Frail was unarmed and there was no evidence he acted aggressively. The Court found that on this evidence at trial, the conviction of the applicant for murder was inevitable. Even if the trial judge had given an incorrect direction on self-defence, it could not have constituted a fundamental defect so as to establish that the applicant had not had a trial according to law, as the applicant had not been denied a fair chance of acquittal. The applicant also submitted that it was erroneous for the trial judge to ask the jury to answer the question of self-defence before that of intention to murder because the jury must determine that the Crown has made out all elements of the offence before considering the defence response. The Court found that the trial judge only suggested to the jury it was more convenient to address the questions in the order he proposed. The Court found that while in some cases this would cause confusion that was not a risk which arose in this case. The element of intent, which was put as a question after self-defence, was effectively not in issue at trial. In these circumstances it was open to the trial judge to conclude it was more convenient for the jury to consider self-defence at an earlier point in their deliberations. Further, no objection was made at trial to the order of the questions put to the jury so rule 4 of the Criminal Appeal Rules applied and leave was required for the applicant to rely on this ground. The Court did not grant leave, finding that the lack of objection by trial counsel allowed a strong inference that in the atmosphere of the trial counsel saw no injustice in what was proposed.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
