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How a ‘no’ turned a murder trial into a miscarriage of justice
Within the courtrooms, all judges, Crown prosecutors and even counsel assisting should be second-guessing how their evidence and examination can lead to a miscarriage of justice. In one instance, just the word “no” was the detriment of a murder case.
Naomi Neilson
Pre-COVID restrictions, when jury members could cram into courtrooms, the Supreme Court of Queensland heard the case of a man who murdered another and then claimed it was all in “self-defence”. Even though there was no question the murder occurred, the way this was argued and put before a jury was enough for a mistrial.
“The real issue in the case was whether the Crown could prove that the killing was unlawful, and that issue raised self-defence,” said the Honourable Justice Peter Davis.
There were two grounds of appeal. First, that a miscarriage of justice occurred when the jury was directed to consider whether the force used in self-defence was necessary. Second, in eliciting and using inadmissible opinion evidence in summary.
The latter was used twice in the initial trial, first with specific parts of police testimony. Post-murder, Mr Saxon was asked questions like, “What would have happened if you hadn’t stabbed him?” and “How badly do you think you would have been hurt?” and, worse still: “Do you think it’s reasonable to stab someone to stop them from punching?”
“The fairness of some of this questioning can be doubted,” Davis J said, adding that the police officers conducting the interview led to the self-defence argument, which was then used against Mr Saxon in the trial and in summary notes to the jury.
“That [police interview] contains an implied assertion by police that the stabbing was not a reasonable or necessary response to Mr Schulze’s attack.”
Then there is the detrimental issue of the Crown prosecutor’s examination of Ms Wilkes when he asked that she recount the attack. The prosecutor put to her: “Did you see anything that made it appear that it was necessary for Mr Saxon to use the knife?”
When Ms Wilkes said “No”, the Crown prosecutor summed up the argument to the jury in a way that led to the miscarriage of justice, according to Davis J.
“It could have been understood by the jury to be relevant to the false issue of the objective necessity of the acts done in self-defence. There was no direction asked for nor given as to how that evidence could or could not be used,” Davis J said.
On these grounds, the appeal was allowed, the conviction was quashed, and a retrial was ordered.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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