May 31, 2012
A convicted murderer sentenced to at least 27 years in jail has had his conviction quashed after Sydney judges found the key witness against him was ''seriously psychiatrically unstable''.
Scott Alan May, who has served nearly five-and-a-half years of a maximum 36 years' imprisonment for the murder of Andrew Heavens, was acquitted today by the Court of Criminal Appeal, with no retrial ordered.
It found a key witness in Mr May's trial was ''incredible'', and that there was a significant possibility Mr May was innocent.
Mr Heavens, 31, was shot three times in the chest in May 2003 in the grounds of Callan Park, near the former Sydney psychiatric hospital in inner-city Rozelle.
Mr May's childhood friend, Ryan Barry Burnes, pleaded guilty in 2007 to murder, contending he pulled the trigger at the behest of Mr May during a meeting between the three men.
The prosecution alleged Mr May wanted to take over Mr Heaven's heroin dealing business by obtaining his client base.
Burnes, a key witness in the trial, gave evidence that Mr May asked him if he would ''go all the way'' for him.
He alleged Mr May gave him a signal to shoot Mr Heavens by using the phrase ''I am going back to get me (sic) wallet out of the car'' and that he shot Mr Heavens as a result.
The trial heard Burnes had a long history of psychiatric illness and drug abuse and he admitted to hearing voices in his head.
Mr May, who has been in prison since January 2007, maintained he arranged to meet Mr Heavens at Leichhardt on the evening he was murdered, but he never showed up.
He appealed the guilty verdict on several grounds, including that the conviction was unreasonable and could not be supported by the evidence, and that directions given to the jury on the question of an extended joint criminal enterprise ''occasioned a miscarriage of justice''.
All three judges agreed the conviction should be quashed, but only two said a verdict of acquittal should be entered rather than a retrial.
Justices Carolyn Simpson and Ian Harrison agreed Burnes's evidence lacked credibility and should not have been relied upon.
''It is quite apparent that he was seriously psychiatrically unstable. For that reason alone, it would be difficult to place reliance on his evidence in a conviction for murder,'' Justice Simpson said in her judgment.
Justice Harrison said Burnes ''emerges as a wholly incredible and unreliable witness''.
''His evidence lacks credibility for reasons that are not explained by the manner in which that evidence was given, and because of the manifold inconsistencies and contradictions that it contains,'' he said.
''I am led to conclude that there is a significant possibility that an innocent person has been convicted.''
Chief Justice Tom Bathurst did not agree Mr May's conviction was unsupported by evidence, but he found the directions given to the jury on the question of extended joint criminal enterprise were incorrect and occasioned a miscarriage of justice.
''On this ground alone the conviction should be quashed,'' he said.