Insight from our team of leading criminal lawyers: how one simple word led to a re-trial in a murder trial

In this article, we look at the claim of self defence in the context of a murder trial. That is, how one simple word led to a re-trial against a conviction of murder.

We won’t go into a high level of detail. However, to give you just one example of how complicated this area of law is; there is a distinction between what must be established for (1) a person who is acting in self defence of an unprovoked attack (they are purely innocent) and (2) a person who is acting in self defence of a provoked attack (they were the original aggressor, whose victim has turned to attack them).

An example of the complexities in murder trials

To demonstrate that, sometimes, even very experienced barristers and judges can get it wrong; we look at the case of Jamie Saxon. Mr Saxon was charged with murder and at the trial, one simple word (‘no’) given in response to one simple question put to a witness by the prosecutor was a perfect illustration of how complicated this area of law can be.

The definition of self defence

In Queensland, the law permits a person who is being attacked to respond in order to protect themselves or another person who is being attacked. This concept, known as ‘self defence’, might sound very simple. However, it is actually an extremely complicated term which has been the subject of much legal argument.

The facts of the matter

On 6 October 2017, Mr Saxon was in a car driven by his girlfriend, a Ms Wilkes. They were travelling through Milton. The deceased, Mr Schulze, and his friend, Mr Mennebroecker, had been drinking and were walking in Milton. Mr Schulze stood in the road, dropped his pants and fondled his genitals. Ms Wilkes accidentally knocked him over in her car. Mr Schulze was not seriously injured in the traffic incident, but, naturally, Ms Wilkes stopped the car. There was an altercation by the side of the road. During the altercation, Mr Saxon stabbed Mr Schulze four times with a fishing knife that was in the car. He died from the injuries sustained from being stabbed.

The principal witnesses to this event, apart from Mr Schulze, were Mr Saxon, Ms Wilkes, Mr Mennebroecker and Mr Rigby. These individuals lived adjacent to the spot where the altercation occurred. There were other witnesses who heard or saw some limited but relevant things. Namely, Claire Lynch, Kate McLiskey and Angela Elbahy. All those people, apart from Mr Saxon, gave evidence at the murder trial. Understandably, there were some inconsistencies between the accounts of the various witnesses.

The case for claiming self defence

However, it is clear at least that: firstly, Mr Schulze was a tall man, in fact, close to two metres tall, and, therefore, much bigger than the appellant. Secondly, Mr Schulze threw punches at the appellant. Thirdly, Mr Schulze was aggressive and clearly intoxicated. And, fourthly, Mr Schulze had a companion, Mr Mennebroecker, and in that sense, the appellant was outnumbered. Although the appellant did not give evidence at his trial, he participated in an electronically recorded interview with police.

At the murder trial, it was not in dispute that Mr Saxon stabbed and therefore killed Mr Schulze. The critical issue at trial was whether or not Mr Saxon’s reaction, in stabbing Mr Schulze four times, was necessary to defend himself from being attacked by Mr Schulze. Therefore, his argument was that he was acting in ‘self defence’.

At the trial, Mr Saxon was found guilty of the murder but then appealed the conviction to the Court of Appeal.

The Court of Appeal argument

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.

(1) Error in jury document

Because some legal concepts are so complicated, the jury is often given documents which break down the law into more easily understood pieces.  The exact wording on the document that was provided to the jury in this matter is as follows:

In relation to self-defence in s 271(2):

(i) There must have been an unlawful assault on Mr Saxon by Mr Schulze.

(ii) Mr Saxon must not have provoked that assault. “Provocation” means any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.

(iii) The nature of the assault must have been such as to cause reasonable apprehension of death or GBH by Mr Saxon.

(iv) Mr Saxon must have believed on reasonable grounds the he could not otherwise preserve himself or another person defended from death or GBH?

(v) The force used by Mr Saxon must be the force which was necessary for defence of himself or another even though such force may cause death or GBH?

The error with this document was the inclusion of (v) above. The jury in the murder trial is meant to consider whether or not the force used by Mr Saxon was necessary from Mr Saxon’s point of view, not from their own or anybody else’s. This is because the courts recognise that a person who is acting in self-defence will ordinarily not have the time or ability to consider their position when deciding how to react. Only the person who is in that specific situation can make that assessment – and that was covered in (iv) above.

(2) Inadmissible opinion evidence

The second ground of appeal was somewhat similar to the first ground. It relied upon the need to objectively (rather than subjectively) assess whether or not the degree of force was necessary.

The Court of Appeal found that the police questioning of Mr Saxon was unfair in the original murder trial. 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, “Do you think it’s reasonable to stab someone to stop them from punching?”

“The fairness of some of this questioning can be doubted,” the appellate judge said. The judge added 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. Furthermore, it was held that the interviews contained an implied assertion by the 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 in the murder trial. 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 the judge.

On these grounds, the appeal was allowed, the conviction was quashed, and a retrial was ordered.

Thank you for reading this article. If you require a defence lawyer for a criminal case in all forms of Criminal related Law, contact Brisbane’s Number 1 Criminal Lawyers and Defence Lawyers. Call us at Cridland Hua.

 

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