THE men responsible for murdering 14-year-old autistic teenager Timmy O’Brien have had their applications to appeal against their convictions refused by the Court of Appeal.
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Court of Appeal acting president Justice Mark Weinberg took less than 30 seconds to deliver the judgment for both men at a regional circuit sitting in Ballarat on Wednesday morning.
Darren Wilson, who was sentenced to 30 years and six months’ imprisonment with a non-parole period of 26 years after being found guilty of one charge of murder and two charges of incitement to murder, sought leave to appeal against his conviction and sentence.
Wilson made the application to appeal against his conviction on the grounds there was a miscarriage of justice caused by the failure of the trial judge to direct the jury they had to be unanimous in their decision, and made an application to appeal against his sentence on the grounds his sentence on the charge of murder compared to Henderson’s gave rise to a justifiable sense of grievance.
But the Court of Appeal justices found Wilson’s ground of appeal against conviction was not reasonably argued and said the trial judge’s charge demonstrated there was no realistic prospect the jury convicted Wilson on a basis they were not unanimous.
They also found the ground of appeal against sentence were not reasonably argued, saying differences in personal circumstances between Wilson and Henderson were explained by the trial judge as reasons for a lower sentence for Joel Henderson.
Henderson, who was also found guilty of murdering Timmy, sought leave to appeal against conviction on two grounds, including there was an unreasonable verdict because it was not open to the jury to infer an agreement was formed between the two men to kill or cause really serious injury to the autistic boy.
The second ground of appeal was made that the trial judge erred in directing the jury Henderson could have participated in the joint criminal enterprise by his presence, failure to intervene and/or supply the murder weapon.
The justices found both grounds could not be upheld, saying their own assessment of the case found there was ample evidence justifying Henderson was part of a joint criminal enterprise to murder Timmy.
Both men denied murdering Timothy ‘Timmy’ O’Brien, who was killed with an axe after he came to the aid of this stepfather on January 5, 2013 at Scarsdale.
TUESDAY | THE two men convicted of murdering 14-year-old autistic teenager Timmy O’Brien have applied to appeal against their convictions in the Court of Appeal.
Henderson appealed his conviction, claiming it was unsafe and unsatisfactory. His lawyer made a submission to the court a reasonable jury could not have accepted the evidence of one of the witnesses, who conceded she had not slept for days, telling the court there was a substantial problem with what she said.
“If conviction hangs on her account, it’s not a sufficient foundation.”
He said while her evidence, which stated she saw Henderson and Wilson punching Timmy to the head, showed an agreement to assault, it did not show an agreement to murder.
He added for the jury to convict Henderson they would need to have been satisfied there was an agreement between Wilson and Henderson to inflict a fatal injury and that Henderson participated in the agreement.
“Even if one accepts he had no problem with Wilson doing what he did with the axe, that’s not enough unless he was encouraging … there’s no evidence of communication between them,” the lawyer told the court.
In reply, the Crown prosecutor said the witness was quite clear during the trial when she was referring to her memory that she saw Darren and Joel hitting Timmy.
The Crown prosecutor said the triple zero call from witness Peter Williams, who stated his stepson was being “belted by a couple of blokes”, supported the female’s account of events.
When asked by the justices whether he wanted to respond to the view by Henderson’s lawyer there was a risk the jury understood standing there doing nothing was participation (due to the way the trial judge dealt with the issue of participation in his charge), he responded the trial judge’s directions were coherent.
Wilson made his appeal on grounds there was a miscarriage of justice. His lawyer told the court the directions from the trial judge should have included a point that stated all jurors must be satisfied Wilson murdered Timmy, or alternatively if he did wield the axe it was in a joint enterprise with Henderson, or both.
The Crown prosecutor argued the trial judge gave definitive directions to the jurors on how to deal with their decision.
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