An Australian man found guilty
of shoving a New Zealand man to his death in West Australia
has had his murder conviction quashed.
Stefan Pahia Schmidt, who pushed musician Andy Marshall
before he fell to his death through a second-storey window at
Cottesloe's Ocean Beach Hotel, will face a retrial after
winning his appeal in a unanimous decision delivered by three
judges of the Court of Appeal this morning.
The court ruled there had been a miscarriage of justice
because the trial judge did not adequately direct the jury on
an essential element of the case against Mr Schmidt.
A jury found Mr Schmidt guilty of murder after a Supreme
Court trial last year.
Mr Marshall, the cousin of slain Feilding farmer Scott Guy,
suffered fatal injuries after being pushed by Mr Schmidt
while talking to a woman at the beachfront pub on May 8,
The 26-year-old shoved Mr Marshall with sufficient force to
propel him into a full-length glass window, from which he
fell to the cement pavement below.
During the trial, the prosecution did not allege that Mr
Schmidt intended to kill Mr Marshall, but claimed he intended
to cause him bodily injury of such a nature as to endanger,
or be likely to endanger, his life.
In this morning's judgment, Chief Justice Wayne Martin said
that at no point in the case did the prosecution identify the
bodily injury which it was alleged that Mr Schmidt intended
to cause or the particular manner in which it was asserted he
intended to cause such injury.
"The prosecution case on that topic was no more specific than
asserting that the jury could find an intent of the requisite
character from the fact that Mr Schmidt pushed Mr Marshall
with significant force in close proximity to concrete
pillars, brick walls and wall-to-wall windows," Justice
He said the trial judge directed the jury that before they
convicted Mr Schmidt of murder, they needed to be satisfied
beyond reasonable doubt that he intended to cause Mr Marshall
a bodily injury and the injury had to be of such a nature as
to endanger or be likely to endanger his life.
But Justice Martin said the trial judge did not give the jury
any more guidance on the subject of the particular bodily
injury which Mr Schmidt had intended.
"In the particular circumstances of this case, the failure to
give such a direction created a real risk that the jury may
have reasoned towards a conclusion of guilt without being
satisfied beyond reasonable doubt that Mr Schmidt intended to
cause Mr Marshall to impact and break the window, which was
an essential step on the path to a conclusion of guilt of
murder," Justice Martin said.
"This caused a miscarriage of justice."
Mr Schmidt was remanded in custody and will appear in the
Supreme Court for a status conference on September 19.
- By Amanda Banks of
The West Australian