Astbury v The Queen
[2020] VSCA 132
•26 MAY 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0074
| ALEXANDER DAVID ASTBURY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 MAY 2020 |
| DATE OF JUDGMENT: | 26 MAY 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 132 |
| JUDGMENT APPEALED FROM: | [2019] VSC 97 (Incerti J (formerly Zammit J)) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of murder – Circumstantial case - Death of victim caused by severe blunt force trauma to chest – Submission by prosecutor in final address that death caused by applicant jumping on chest of victim - No such proposition foreshadowed in prosecution opening – Not put to applicant in cross-examination – Whether miscarriage of trial due to significant departure in prosecutor’s closing address from prosecutor’s opening – Breach of rule in Browne v Dunn (1893) 6 R 67 – Prosecutor’s proposition in closing address as to method by which fatal injuries were inflicted not supported by evidence – Whether verdict unreasonable and not supported by evidence – Evidence as a whole did not allow an inference that murderous intent existed at the time fatal injuries were inflicted – Leave to appeal granted – Appeal allowed – Conviction of murder quashed – Substituted with conviction of manslaughter – R v Tangye (1992) 92 A Crim R 545, Tran v The Queen (2000) 105 FCR 182 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Marsh with Ms E Ramsay | Victoria Legal Aid |
| For the Respondent | Ms D Piekusis QC with Ms R Sharp | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
NIALL JA
WEINBERG JA:
Rafet Demirel (‘Demirel’) died during the course of a violent struggle with the applicant that took place on 11 February 2017. The applicant was charged with his murder. On 19 October 2018, he was convicted by a jury of that offence. He was sentenced to 18 years’ imprisonment, with a non-parole period fixed at 14 years and six months. The applicant seeks leave to appeal against his conviction.
The incident, that resulted in the death of Demirel, occurred in premises in Baxter Street, Coburg, that were owned by Demirel and his wife. The property contained a house and two bungalows. At the time of the offence, Demirel and his wife lived in the second bungalow on the property. The applicant and his partner had been tenants of the first bungalow since March 2016. The house was occupied by three tenants. The evidence established that there had been no major issues involving the applicant and Demirel until the week immediately preceding the offence. At that time, the applicant had begun arguing with his partner, having accused her of infidelity. The arguments, which were heard by the neighbours, escalated to the point that the applicant locked his partner out of the bungalow and began removing her belongings from it. A number of witnesses, who gave evidence at the trial, described the applicant as then being in a state of distress, crying, hitting himself in the head, and muttering ‘jealous, jealous’ to himself.
On Friday, 10 February 2017, Demirel spoke with the applicant and his partner, telling them that they must calm down. However, on the same night, the applicant and his partner had another argument, which culminated in his partner leaving him and departing from the property.
On the following day, 11 February, the three tenants from the main house returned from the supermarket and were having difficulties lifting their trolley. The applicant assisted them and was described, at that time, as being in good spirits. However, a short time later, he was observed to be upset, hitting his head against the wall and putting his fist near his own mouth.
The incident that resulted in the death of Demirel occurred at about 2:00 pm on that day. There were no eyewitnesses to the circumstances leading up to the incident, or to the incident itself. The applicant, who gave evidence at the trial, said that Demirel called out to him from his bungalow and asked to speak to him. According to the applicant, after he entered the bungalow, and began speaking with Demirel, the latter attacked him. The applicant said that in the course of the ensuing struggle, he fell on top of Demirel, with his knees forcefully striking Demirel’s chest. The evidence of the pathologist, Dr Malcolm Dodd, was that Demirel had sustained 38 fractures to his ribs, with 19 symmetrical fractures on each side of the ribcage. The cause of death was internal blood loss as a result of blunt force trauma to the chest. There was also evidence of some blunt force trauma to Demirel’s head.
After the incident, the applicant was seen by one of the tenants dragging Demirel’s body out of the bungalow and into the backyard of the property. He was also seen wrapping the body in a sheet that he had taken from the clothesline in the backyard. The applicant then left the property. He was arrested later that evening at about 7:40 pm.
The principal issues at the trial concerned, first, whether the actions of the applicant, which caused Demirel’s death, were voluntary and deliberate, secondly, whether the applicant intended to kill Demirel or, at least, cause him really serious injury, and, thirdly, whether the applicant had acted in self-defence.
The proposed grounds of appeal are directed to a central issue in the trial concerning the nature of the blunt force trauma that caused the injuries to Demirel’s chest. In that respect, the applicant relies on two proposed grounds of appeal:
Ground 1 — The trial miscarried due to the prosecution improperly inviting the jury to convict on the basis of a factual scenario (jumping on the deceased) that was inconsistent with the way the prosecution opened and conducted the case.
Ground 2 — The verdict was unreasonable and cannot be supported by the evidence. The evidence as a whole did not allow an inference to be drawn to the requisite standard that murderous intent existed at the time the fatal injuries were inflicted.
In order to consider those two grounds, it is necessary to set out, in some detail, the evidence of Dr Dodd and that of the applicant.
Summary of the evidence of Dr Dodd
Dr Dodd commenced by outlining his qualifications as a forensic pathologist. In doing so, in answer to a question by the prosecutor, he stated in passing that he had acted as a pathologist on numerous occasions in the Solomon Islands. There, he had observed injuries to the chest and rib area that had been a consequence of a ‘significantly recurring common cause of violent death’ in that country.
Dr Dodd then outlined, in some detail, the results of the autopsy that he had conducted on Demirel. He said that the deceased weighed 75 kilograms and measured 153 centimetres. We interpolate that, by contrast, the applicant was 188 centimetres tall and, at the time of the incident, weighed 100 kilograms.
Dr Dodd first described the signs of trauma that he observed to Demirel’s face and head. In particular, there was bruising to the right earlobe that extended below it, bruising around the upper eyelid, a blood nose, a haemorrhage to the upper lip and a left-sided black eye. Bruising extended to the left cheek region and in front of the left ear.
Dr Dodd then described the injuries to the chest. He found that virtually all of the ribs had been fractured in at least one place. One of the fractures, on each of the ribs, was close to the midline, but there was no fracture to the breastbone itself. Dr Dodd also observed some ‘flail segments’. He explained that a flail segment is an area of bone which is surrounded by a fracture. In the case of such a segment, when a person breathes, part of the ribs bounded by the fracture are unsupported. Inflation of the lungs causes that part of the ribcage to move inwards.
Dr Dodd stated that the deceased had multiple areas of such flail segment formation. He said that the multiple flail segments caused the amount of chest expansion to be compromised. In addition, the deceased had 200 ml of blood loss within the chest cavity. The combination of blood loss and inability to breathe adequately resulted in diminishing levels of oxygen. This led to reduced heart rate, and ultimately cardiac arrest and death.
Dr Dodd said that there were, in total, 19 fractures on the right-hand side, and 19 fractures on the left-hand side. The fracture pattern was almost symmetrical. The large number, and pattern of the fractures, were typical of the pattern and severity which might occur in a motor vehicle accident where the steering column impinges on the chest of the victim. It might also occur in industrial accidents where a person’s chest is crushed by a heavy object.
Dr Dodd stated that some of the deceased’s ribs may have been fractured by individual kicks or blows. However, overall, the pattern of fracture indicated a very forceful front to back compression of the chest against a firm surface. He said that that type of compression resulted in fracture of the ribs at their weakest point.
When asked how many applications of discrete separate blunt force trauma were required to cause those fractures, Dr Dodd responded:
I would be comfortable saying one blow here, one, possibly two to the left side, in terms of the ribs, I think it’s more than one episode of compression, I would say it’s multiple, but however three, four or five, I couldn’t say.
In cross-examination, when asked about his experience in the evaluation of injuries of the kind that he observed in this case, Dr Dodd reiterated that he had been to the Solomon Islands on many occasions in respect of deaths caused in the civil war that had taken place in that country. He said that in a number of those cases, he had observed an almost identical rib fracture pattern. He added that it seemed to be a quirk of the Solomon Islands civil war that one of the methods of ‘dispatching’ an opponent was to jump, or throw a boulder, on their chest.
Dr Dodd agreed that an external examination of the deceased gave no indication as to the cause of death. If the internal injuries to the chest had been caused by multiple kicks and blows, he would have expected to see individual marks on the body. He agreed that the fracture sites of the ribs did not each represent a separate blow to the body. He did not consider that the majority of injuries to the ribs had been caused by kicking, or similar trauma. Rather, the majority of the fractures were the result of a symmetrical compressive force, from the front to back.
Dr Dodd was then asked whether a single compression to the front of the chest, of significant force, could account for a substantial number of the injuries to the chest. He said that this was possible. The flail segments and fractures at different points might represent a second application of force. He agreed, however, that the majority of the fractures, in particular those that were symmetrical, could, ‘in theory’ be caused by one very significant episode of compression. He added, ‘you can’t exclude more’.
When pressed, Dr Dodd agreed that a single application of sufficient force to the front of the chest could have accounted for all of the anterior fractures. He agreed that all of the fractures down the posterior spine could have been caused by a single compression of the chest, with the victim lying on a flat surface. He agreed that if the deceased had been kneed multiple times in the chest, that could account for the injuries to the floating ribs, with the balance of the injuries caused by a compressive trauma to the chest.
Dr Dodd also agreed that if a grown adult male weighing 100 kilograms fell, in an uncontrolled way, with the full weight of his body travelling through his knees and landed on the chest of the deceased, that mechanism could have accounted for the injuries to the deceased’s chest. He said that he could not exclude such a scenario as a possible cause of death in this case. In conclusion, when asked whether the fatal injuries to the deceased could have occurred in a single episode, with a sufficient application of force over a diffuse area of the chest, Dr Dodd responded:
Yes, I am of the opinion that there may have been more application of force, but potentially could be one very large forceful impact.
In re-examination, Dr Dodd said that he had not observed any similar pattern of injury in autopsies that he had previously performed in Australia. He said that in the case of blunt force trauma to the chest, he had not previously seen such a symmetrical pattern of fracture. He said that in his experience in the Solomon Islands, such injuries resulted where a person jumped on the chest of the victim, or dropped a boulder onto the victim.
When Dr Dodd was asked about his evidence in cross-examination that the compressive force may have been repeated two or three times, he said:
I am comfortable with the proposition that more than one episode of compression occurred. Whether I take it to three or four, I’m not sure I can do that. The reason I’m saying that is that the fractures are quite symmetrical, but I’m impressed by the severity of the flail segment formation … I can’t imagine all those flail segments occurring spontaneously after one application of force. I think the mirror fractures to the side of the ribs and the back could easily be explained by one episode of force, ribs have broken now and a succession of applications of force have caused additional fractures leading to flail segments and I think one definitely, two very likely, three after that I can’t say.
When asked about the fractures to the floating ribs, Dr Dodd said that because the two ribs in question (rib 11 and 12) were low and were more protected than the upper ribs, it might require a specific blow to those ribs to break them. He said that, in the Solomon Islands, he commonly saw that the floating ribs were fractured because the victim had received very forceful kicks to the flanks during the process of the assault before that person was ‘dispatched’. Finally, when asked about the scenario of an adult male of 100 kilograms falling with his knees onto the chest of the deceased, Dr Dodd stated that such a process could well produce symmetrical fractures. However, they might be restricted to the area where the knee impacted with the chest, and that ‘you wouldn’t necessarily get the whole multiplicity of fractures as we see it’.
Evidence of the applicant
In his evidence, the applicant explained that in the twelve months in which he and his partner had lived at the Baxter Street premises, he had had an amicable relationship with Demirel. He described the arguments that he had been having with his partner during the week leading to the incident. On the Wednesday or Thursday night, Demirel had spoken to him and told him that he had to stop fighting with his partner.
The applicant said that on the day of the incident, he was feeling upset and distressed about the fights that he and his partner had been having. Shortly before the incident, Demirel called out to him, and in response he went into Demirel’s bungalow. Demirel was sitting in a chair facing the doorway. He said to the applicant that he had told him to stop fighting, that he was still fighting, and that ‘this is no good’. He then said to the applicant ‘[your partner] is a stupid bitch and you’re a dickhead for fucking her’. The applicant responded by saying ‘well you’re an old cunt’ in a firm tone.
Thereupon Demirel’s expression changed and he looked very angry. He stood up and went to strike the applicant with his right fist. The applicant blocked the blow with his arm and pushed Demirel back face down onto his seat. Demirel then stood up and tried to punch the applicant. The applicant grabbed him by his shoulders and they struggled. He said that Demirel ended up with his right arm around his waist in ‘almost a football tackle position’. In response, the applicant kneed him in the stomach three times. He said that he was trying to take the wind out of Demirel, and cause him to desist. However, the knees to the stomach did not have much effect, although after the third such blow Demirel let go of him. The altercation then continued, and Demirel tried to strike the applicant with his right hand. Demirel also tried to strangle him. The applicant brushed Demirel’s hands aside, and grabbed him by the shoulders. In response, Demirel grabbed hold of the applicant’s jacket and trousers. The applicant said that he responded by kneeing Demirel twice. He then struck Demirel on his back with his elbow. As a result, Demirel let go of him.
At that point, both men were standing alongside a coffee table. Demirel was standing next to the long side of the table and the applicant was on the short side. The applicant tried to get around Demirel and leave the room. As he did so, Demirel grabbed him by his jacket. The applicant then described what occurred in the following terms:
[W]e both over balanced and he fell backwards on his back and I fell forwards and landed on top of him with my knees in his chest.
The applicant said that he was not able to do anything to break or slow his fall, and that his knees landed onto the front of Demirel’s chest. He said as a result, Demirel seemed to be out of breath and puffed. However, he was not moving. The applicant got off him and went back to his own bungalow.
Defence counsel then asked the applicant whether he had stomped on Demirel. He responded ‘no, definitely not’. He also said that he had not dropped any object on Demirel. He said that there was no other contact between them apart from that which occurred when he landed on top of Demirel. He denied that he had intended to kill Demirel, or cause him really serious injury. He said that he had used force against Demirel only because he thought that Demirel was trying to kill him.
The prosecutor cross-examined the applicant in some detail in relation to each aspect of the incident. In respect of the final part, in which the applicant said that he fell on Demirel, the prosecutor put to the applicant the following question:
It was never the case, as you understand it of Mr Demirel being flat on the ground against the floor with you vertical, standing above him? --- We overbalanced at the same time. I wasn’t standing over him and I didn’t jump from standing on him to on him.
The prosecutor asked the applicant further questions about the respective positions of himself and Demirel at that point. He then put the following two questions to the applicant:
What I’m suggesting to you … there is no prospect in that scenario for your knees to drop onto his chest? --- If my momentum’s travelling forward, he grabs me there, from arm’s length, we tip over together, my momentum is industrial travelling forwards, my knees land in his chest, and that’s exactly what happened …
Can I suggest to you you’ve been present during this trial and you have carefully noticed the evidence of the internal injuries and you know that you have to feed your knees into his chest to support your defence? --- No, that’s not the case, I’m giving a perfect recount of what happened.
Subsequently, in cross-examination, the prosecutor put to the applicant that because of the emotional stress he felt about his partner, he had lost control of himself, and violently attacked Demirel. The applicant rejected that proposition. Subsequently, the prosecutor repeated that question. He put to the applicant the following propositions, each of which the applicant denied, namely: that he snapped when Demirel criticised him; that he ‘laid into’ Demirel; and that he ‘lost it’. The prosecutor put to the applicant (which he denied) that his account of what had occurred was a ‘fantasy’. The prosecutor then concluded by putting the following question:
And that what happened on this night, this day, was that you lost your temper and in a fury rained blows upon this man that led to his death? --- No, that’s not the case. That was exactly how I described.
Ground 1
Ground 1 is directed to a part of the prosecutor’s closing address to the jury, in which he contended that the applicant had lost control of his temper, inflicted a number of blows on Demirel, and jumped on him, thereby killing him. In essence, it was contended that the prosecutor had never advanced the contention that the applicant had jumped on Demirel, in his opening address to the jury. Nor had he done so in cross-examination of the applicant. Thus, it was submitted, the prosecutor, in his final address, presented the prosecution case to the jury in a manner that was new, different from the way the matter had previously been put, and not agitated during the trial.
In the written summary of prosecution opening that was filed pursuant to
s 182 of the Criminal Procedure Act 2009, the prosecution outlined its case against the applicant in the following manner:
In the course of that meeting, the accused has brutally assaulted the deceased. During the assault, the accused has struck the deceased with a number of significant blows, delivered by a younger and taller man to an older, shorter man. The blows were to the deceased [sic] head and torso. The blows were delivered by the accused via his hand and or feet. From the extent and severity of the injuries to the deceased, a number of blows have been delivered by the accused with murderous intent to the deceased, whilst the deceased was on the floor of bungalow 2.
It can be seen from that passage that there was no suggestion whatsoever in the summary of the prosecution opening that the applicant had brought about the death of the deceased by jumping upon him. At no stage, before or during the trial, did the prosecutor inform the court, or counsel for the applicant, that he intended in any way to depart from the content of that opening.
In his opening address to the jury, the prosecutor, having summarised the evidence that was proposed to be led from Dr Dodd, stated:
And he [Dr Dodd] will also inform you, drawing upon his expertise in such matters, that the applications of blunt force trauma in this case are indicative of beating or kicking.
Having described to the jury the injuries to the deceased’s ribs, the prosecutor then said:
[Y]ou will hear from the doctor that the immediate cause of death is one of extensive acute internal blood loss, secondary to multiple applications of blunt force trauma, particularly to the torso.
As already indicated, the prosecutor did not put to the applicant, in cross-examination, the suggestion that in the course of the struggle he had jumped onto the torso of Demirel. Rather, he put to the applicant that he had ‘snapped’ when Demirel spoke to him, and ‘laid into Mr Demirel’. In concluding his cross-examination, he put to the applicant that he had lost his temper and, in a rage, had ‘rained blows’ upon Demirel causing his death.
It was not until his final address that the prosecutor first advanced the proposition that the applicant caused Demirel’s death by jumping on his chest. Towards the very end of his address, he described to the jury the conduct of the applicant after the incident, in which the applicant had dragged the deceased’s body into the yard by one leg, with what he characterised as ‘a callous disregard for the safety and dignity’ of the deceased.
The prosecutor then put the following argument to the jury:
[I]t is a very ugly and callous disregard for Mr Demirel’s person and his dignity. It gives you an insight into some of the questions you have to ask yourself of being satisfied beyond reasonable doubt that when he was in that unit, for reasons best known to himself, and we don’t need to know them, he lost it, and rained blows of one form or another all over this man with the result that occurred, and jumped on him rather than accidentally falling on him, and killed him. And did so at a time when he was, because of the frequency of the blows, hell bent on hurting him, for some ridiculous reason, no doubt fuelled by his dislocated emotional state.[1]
[1]Emphasis added.
Unsurprisingly, counsel for the applicant, objected to this part of the prosecutor’s address. He did so on the ground that the prosecutor had not put to the applicant, in cross-examination, that he had ‘jumped on’ Demirel. Counsel submitted that the judge should give an appropriate direction to the jury. He went further, and submitted that her Honour ought also to instruct the jury that there was no evidence which would entitle the jury to conclude that the applicant had jumped on the chest of Demirel, as suggested.
The judge ruled that the prosecutor had failed to comply with the rule in Browne v Dunn,[2] noting that it had been incumbent on the prosecution in cross-examination to put the allegation squarely to the applicant if it intended to use it in final address. Her Honour considered that the jury ought, therefore, to be instructed that the prosecutor’s failure to put that allegation to the applicant bore on the weight which they should attach to that proposition. However, her Honour considered that there was an evidentiary basis for the jury to conclude that the applicant had caused the death of Demirel by jumping on his chest. That evidentiary basis came from the evidence of Dr Dodd as to his experience in the Solomon Islands with injuries of the kind sustained by Demirel.[3]
[2](1893) 6 R 67 (‘Browne v Dunn’).
[3]R v Astbury (Ruling No 5) [2018] VSC 637, [17]–[21].
Accordingly, in her charge to the jury, the judge gave the following direction:
I need to direct you about a rule of practice concerning cross-examination of witnesses. The rule says that whenever a defence witness gives evidence, prosecution counsel must cross-examine them about any matters that are relevant to the prosecution’s case and must put any allegations that they intend to make against that witness directly to them. This is a rule of fairness which allows witnesses to confront any proposed challenges to their evidence and enables you to see and assess the reaction of the witnesses to those challenges.
Prosecution counsel broke this rule by not challenging Mr Astbury about whether he jumped on Mr Demirel. As a result Mr Astbury was denied the opportunity to respond to that challenge, and you were deprived the opportunity of hearing his evidence in response. You can take this into account when assessing the weight you give to the allegations that Mr Astbury jumped on Mr Demirel.
Counsel for the applicant before this Court relied on two principal submissions in support of ground 1, which, it will be recalled, is that the trial miscarried as a result of the prosecutor submitting to the jury that it should conclude that the applicant, having lost control of his temper and inflicted a number of blows on Demirel, jumped on him, thereby inflicting the fatal injuries that resulted in his death.
Counsel submitted that the prosecutor’s invitation to the jury to find that the applicant had jumped on Demirel’s chest, thereby causing his death, first advanced in his final address, constituted a fundamental change to the manner in which the prosecution had put its case to the jury. This resulted in a manifest unfairness to the applicant.
In support of that particular argument, counsel noted that, before commencing his final address, the prosecutor had not foreshadowed that he would seek to advance such a proposition to the jury. He had not raised the suggestion that he would do so in his written summary of opening, or in his actual opening to the jury. He had not sought to elicit a basis for that suggestion through the examination-in-chief of Dr Dodd, and he had not put the suggestion to the applicant in cross-examination.
As a consequence, counsel for the applicant did not have the opportunity to test that proposition in cross-examination of Dr Dodd, or by adducing evidence from the applicant in respect of it. The submission by the prosecutor to the jury was a clear and fundamental breach of the principle in Browne v Dunn. It resulted in an irremediable unfairness to the applicant.
Secondly, counsel for the applicant submitted that, in any event, there was no evidentiary basis for the prosecutor’s contention, in his closing address, that the applicant had caused the death of Demirel by jumping on his chest. Dr Dodd’s evidence rose no higher than suggesting a number of possible mechanisms by which the compression fractures to the rib cage might have been occasioned. However, Dr Dodd expressly stated, in his evidence, that, based on the evidence of the post-mortem, he was unable to proffer an opinion as to the mechanism by which the compression fractures were occasioned to Demirel.
In its written case in response, the respondent contended that there was no inconsistency between the manner in which the prosecution had opened its case, and the prosecutor’s submissions in final address. Rather, it was contended that, having opened the case in a general manner in respect of the cause of the injury sustained by Demirel, the prosecution closed that case ‘in a more specific way’. It was contended that this modification of the prosecution case did not involve any inconsistency. Rather, it was based on the evidence of Dr Dodd, elicited in cross-examination, when he postulated, as one possible mechanism for the injury sustained by Demirel, the method that he had observed in the Solomon Islands, namely, killing an adversary by jumping on their chest.
The applicant, in cross-examination, himself denied that he had jumped on Demirel. He had done so spontaneously, and not in response to any invitation to make that statement on the part of the prosecution. It was submitted it was open to the jury to reject the applicant’s evidence as to how the fatal injuries were inflicted on Demirel, and to accept the prosecution case that the injuries were caused by intentional blows by hands or by feet, or ‘however inflicted’.
In oral submissions before this Court, senior counsel for the respondent contended that the concluding argument of the prosecutor, which suggested that the applicant had jumped on Demirel’s chest, should be considered in the context of the prosecutor’s final address, taken as a whole. Senior counsel contended that, up to that stage, the prosecutor had expressly stated to the jury that the cause of the massive compressive injury to Demirel was unknown. The prosecutor told the jury that Dr Dodd had advanced a number of hypotheses as to the possible method by which the blows had been inflicted. Certainly, this was not restricted to ‘jumping on’ a person. Thus, it was submitted, the passage of the prosecutor’s address, relied upon in support of ground 1, did not accurately reflect the whole of the manner in which the prosecutor had put the case to the jury in final address.
Ground 1 — analysis and conclusion
Contrary to the submissions made by senior counsel on behalf of the respondent, the passage in the prosecutor’s closing address, relied on by the applicant, was not only intended to convey to the jury, but, more importantly, would have been understood by the jury to mean that the applicant caused Demirel’s death by jumping on his chest. We do not accept the submission that the prosecutor intended only a rhetorical flourish when he spoke of ‘jumping on’ the deceased. Nor do we consider that the jury would have so understood that submission.
The prosecutor, understandably, spent some time in his closing address summarising the evidence of Dr Dodd to the jury. He noted Dr Dodd’s view that the fatal injuries had been caused by a significant compressive force being applied to Demirel’s chest while he was lying on an unyielding solid surface. Having reminded the jury that Dr Dodd had expressed the view that there was evidence of the application of blunt force trauma on multiple occasions, the prosecutor then said to the jury that it might recall ‘one interesting aspect’ of Dr Dodd’s evidence that was adduced in cross-examination. He said ‘interestingly’, on the topic of the disparity of internal and external injuries, counsel for the applicant had ‘significantly’ discussed with Dr Dodd his qualifications. The prosecutor then said that ‘the doctor gave a very interesting answer’ in relation to the proposition that he was an expert of some considerable expertise in the evaluation of injuries of the kind sustained by Demirel. The prosecutor then quoted the response given by Dr Dodd, to defence counsel, in which he referred to the experience that he had had of observing that one of the quirks of the civil war in the Solomon Islands was that ‘one of the ways of dispatching someone was to jump on their chest, or chuck a boulder on their chest’.
Pausing there, it is clear that the prosecutor, at that stage, sought specifically to draw the jury’s attention to that aspect of Dr Dodd’s evidence that related to his experience in the Solomon Islands. The prosecutor’s repeated use of the term ‘interesting’ or ‘interestingly’ was plainly intended to highlight the points being made.
Subsequently, in his closing address, in a passage relied on by senior counsel for the respondent, the prosecutor did say to the jury ‘we don’t know what caused that massive compressive injury, or several applications of force’. However, he then proceeded to state: ‘Dr Dodd gave you hypotheses as to possible methodology, and that is not restricted to jumping on a person’.
Having again referred to Dr Dodd’s evidence as to that matter, the prosecutor contended that the applicant, by giving evidence that he accidentally fell on Demirel with his knees striking Demirel’s chest, had in effect tailored his evidence to ‘dovetail’ into the evidence of Dr Dodd which he heard in the course of the trial. In other words, at that point, having again adverted to Dr Dodd’s evidence of the mechanism by which the compressive injury might have been inflicted, including (but not restricted to) jumping on a person, the prosecutor sought to persuade the jury to reject the alternative version of events given by the applicant.
The prosecutor then outlined, in some detail, the actions of the applicant after he had inflicted the fatal injury on Demirel. He described how the applicant had failed to telephone the emergency services, and how he had moved Demirel’s body in a manner which was ‘a callous disregard for the safety and dignity of the man he’s dragging’. He contended that that action gave the jury an insight into the applicant’s attitude towards Demirel during the incident that occurred in the bungalow. He then concluded that part of his submissions in his closing address, with the passage, that we have earlier quoted, in which he contended that, having ‘rained blows’ on Demirel, the applicant ‘jumped on him rather than accidentally falling on him, and killed him’.
In that context, the proposition advanced by the prosecutor, that the applicant caused Demirel’s death by jumping on his chest, after inflicting a number of other blows on him, was clearly the culmination of the submissions that he had made to the jury in relation to that aspect of the case.
We are not persuaded that, viewed in that context, the prosecutor intended the allegation that the applicant jumped on Demirel’s chest to be nothing more than a rhetorical flourish that the jury should ignore. More importantly, we are not persuaded that the jury would have so regarded it. Rather, it was the culmination of the submissions advanced by the prosecutor to the jury as to the conclusion that it should reach concerning the manner in which the applicant had caused the death of Demirel.
There are three separate, but related, reasons why the prosecutor’s submission to the jury, that it could find that the applicant caused Demirel’s death by jumping on his chest, has resulted in a substantial miscarriage of justice.
First, the prosecutor’s submission was, as we have said, a significant departure from the manner in which he had opened the trial, adduced evidence from Dr Dodd, and cross-examined the applicant. At no point, in any of those processes, did the prosecutor seek to advance the proposition, put to the jury in his final address, that the applicant had caused the death of Demirel by jumping on his chest.
As we have already noted, both in the written outline of prosecution opening, and in the prosecutor’s opening to the jury, the prosecution case was essentially that the applicant had caused the death of Demirel by inflicting a number of blows to Demirel’s body by beating or kicking him. Although at the commencement of Dr Dodd’s evidence-in-chief he referred to his experience in the Solomon Islands, the prosecutor did not, at that point, or subsequently, seek to elicit from Dr Dodd evidence that equated the mechanism of compressive force injuries to the chest and rib area, that he had observed in the Solomon Islands, with the doctor’s findings on the cause of Demirel’s death. Nor, of course, did the prosecutor put such a proposition, at any stage, to the applicant in cross-examination.
In our view, the departure by the prosecutor from the manner in which he had outlined the prosecution case to the jury in opening, resulted in a significant unfairness to the applicant such as to result in a substantial miscarriage of justice. The courts have, on a number of occasions, emphasised the important role of the prosecution opening, not only in explaining the case to the jury, but also in enabling an accused person to understand, and thus to be able to make an answer to, the manner in which the prosecution put its case against the accused.
In R v Tangye, Hunt CJ at CL (with whom McInerney and Sully JJ agreed) stated the relevant principles in the following terms:
The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the trial judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses.[4]
[4](1992) 92 A Crim R 545, 556.
In Tran v The Queen, the Full Court of the Australian Capital Territory (Black CJ, Weinberg and Kenny JJ) stated:
Although there are no formal pleadings, as such, in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused, and essentially to adhere to that case. For example, where the Crown throughout most of a trial presents its case on the basis that a particular accused was an accessory before the fact to a killing by another accused, it is not appropriate to permit the Crown to put a quite different case to the jury after all the evidence has been led.[5]
[5](2000) 105 FCR 182, 203 [133] (citations omitted).
As those statements of principle make clear, in a criminal trial, the prosecution opening is a material aspect of the right of an accused person to know the precise nature of the prosecution case. As such, it is an important part of the right of an accused person to procedural fairness. The significant departure, by the prosecutor, from the manner in which he had foreshadowed opening the case to the jury, and from the manner in which he had in fact opened the case to the jury, constituted a significant breach of that right, and of itself resulted in a substantial miscarriage of justice to the applicant.
The second defect associated with the change in the nature of the prosecution case, first raised in the prosecutor’s closing address, was the failure of the prosecutor to put to the applicant, in cross-examination, the proposition that he advanced in his final address, that the applicant had caused the death of Demirel by jumping on his chest. After the applicant, in evidence-in-chief, described how he had fallen on Demirel, his counsel asked him a series of questions, namely whether he stomped on Demirel, kicked him using his feet, or dropped an object onto him. The applicant denied that he had performed any of those actions.
At no point in the course of cross-examination did the prosecutor put to the applicant that he had jumped on Demirel. At one point, the prosecutor put to the applicant that it was never the case of Demirel being flat on the ground against the floor with the applicant being vertical, standing above him. The applicant responded:
We over balanced at the same time together. I wasn’t standing over him and I didn’t jump from standing on him to on him.
Although the prosecutor did cross-examine the applicant with a view to undermining his account of having accidentally fallen on Demirel, at no point did he put in issue the applicant’s specific denial of having jumped on Demirel. Rather, at a point near the conclusion of the cross-examination, he put a series of propositions to the applicant, to the effect that he had ‘snapped’ after Demirel spoke to him, that he had rained blows on Demirel, and that the applicant’s account of what had occurred was a fantasy. As already noted, he concluded that part of the cross-examination by specifically putting to the applicant that he had lost his temper ‘and in a fury rained blows upon [Demirel] that led to his death’.
As the trial judge correctly concluded, the failure of the prosecutor to put to the applicant the proposition, that he ultimately advanced in his final address, constituted an obvious breach by the prosecutor of the established rule in Browne v Dunn.[6] As such, it was a serious departure from a basic rule of fairness that is designed to ensure that a witness — in this case the applicant — be accorded the opportunity to respond to a material proposition on which the cross-examiner seeks to rely, and that is inconsistent with the evidence of the witness.
[6]Cf Reid v Kerr (1974) 9 SASR 367, 374 (Wells J); Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [66]–[69] (Kaye and Weinberg JJA and Kidd AJA).
The third, and perhaps most fundamental, defect in the submission made by the prosecutor that the applicant had jumped on Demirel, was that that proposition was not supported by the evidence adduced at the trial.
In his evidence-in-chief, Dr Dodd was asked if he could offer an opinion as to the particular method by which the compressive blunt force trauma was applied to Demirel’s chest. Dr Dodd responded:
I would suggest it’s possibly a combination of kicking to individual areas, possibly stomping, possibly forcefully sitting on the chest would be a possibility as well. You can’t exclude something heavy being dropped on the chest, but that would be an investigative issue.
The evidence of Dr Dodd, as to his experience in the Solomon Islands, was volunteered in answer to a general question about his expertise and experience as a forensic pathologist. It was not evidence of an opinion, expressed by him, as to what had occurred in this case. Although Dr Dodd, in cross-examination, said that he had seen the same pattern of rib fracture in such cases in the Solomon Islands, importantly, he did not say that that pattern could be achieved without producing visible external signs of trauma to the body. Indeed, given that his experience in the Solomon Islands was based on an examination of skeletal remains, there may have been no basis for him to express such an opinion. Importantly, the prosecutor did not attempt to elicit that evidence from Dr Dodd, nor could he have properly done so without giving appropriate advance notice to the applicant.
Pausing there, it is clear that Dr Dodd was not able, on the basis of his expertise, to determine the method by which compressive force had been applied to the chest of Demirel. He was able to do no more than postulate a number of different, and varied, potential scenarios. In cross-examination, and in re-examination, he adhered to the same position. In cross-examination, he agreed that there was nothing about the surface of the deceased’s body that enabled him to identify the mechanism by which force was applied to it. He said that he could not exclude, as a possible cause, a person falling on the deceased with his knees landing on the deceased’s chest. He said:
I can’t exclude it and, as I said, the lack of external trauma indicates that the force was diffusely applied, and that’s as far as I can take it quite frankly.
In similar terms, in re-examination, Dr Dodd, when asked how he ‘imagined’ the full weight of the applicant’s body being transferred onto the prone chest of the deceased, said:
It could be a number of ways, it could literally just be forceful sitting, landing on top, it could be knees, but I expect it would be more than that, it could be any of those things repeated, as opposed to one single application. I think there are too many variables and this is the trouble with blunt force trauma, it’s often very non-specific and open to interpretation.
Thus, the evidence of Dr Dodd, as the expert pathologist, rose no higher than postulating a number of possible mechanisms by which the compressive injury was inflicted that resulted in the death of Demirel. Notwithstanding Dr Dodd’s experience in the Solomon Islands, to which he have referred, he did not, when asked, suggest that jumping was a possible mechanism for the trauma to the ribs. His evidence did not constitute an appropriate basis for the proposition, put to the jury in the prosecutor’s address, that the applicant had caused that injury by jumping on Demirel.
In advancing that proposition, the prosecutor invited the jury to draw a conclusion that was not open on the evidence. It is clear, from the jury’s verdict, that it did not accept the evidence given by the applicant as to the method by which the compressive injury had been caused to Demirel. In those circumstances, it is quite feasible that the proposition, so advanced by the prosecutor, induced the jury to engage in an impermissible process of reasoning in order to form a conclusion as to the manner in which the applicant inflicted the injury that caused the death of Demirel.
Accordingly, for those three reasons, we consider that the applicant has established the basis of ground 1 of the application.
In addition to the foregoing, it is appropriate to note that there were two further aspects of the evidence of Dr Dodd, relating to his experience of the manner of inflicting death in the Solomon Islands, which compounded the miscarriage of justice occasioned to the applicant arising out of the final address of the prosecutor. First, in the report prepared by him, and in his evidence in the committal proceeding, Dr Dodd made no reference at all to his experience in the Solomon Islands. Nor did he suggest, in his report or in his evidence at the committal proceeding, that Demirel’s death might have been caused by the applicant jumping on his chest. In those circumstances, counsel for the applicant at trial had every justification to complain that he was taken entirely by surprise by the reference to Dr Dodd’s Solomon Islands experience in his evidence, and, in particular, by the reliance on that evidence by the prosecutor in his final address.
Secondly, the evidence of Dr Dodd, relating to his experience in the Solomon Islands, was of itself highly prejudicial. The deaths, about which Dr Dodd had made observations, were all clearly occasioned by brutal and cowardly acts of violence. If there was one piece of Dr Dodd’s evidence that would have entrenched itself in the minds of the jury, it would have been the image of Solomon Islanders killing their enemy by jumping on their chests, or dropping boulders on them, while they lay helplessly on the ground. In the context of the case, and in particular given the conduct of the applicant after he had caused the death of Demirel, the evidence of Dr Dodd concerning his Solomon Islands experience, and the reliance on it by the prosecutor in final address, could only have occasioned significant additional unfair prejudice to the right of the applicant to a fair trial.
For the foregoing reasons, we would grant the applicant leave to appeal, and allow the appeal, on ground 1.
Ground 2
In his submissions in support of ground 2, counsel for the applicant acknowledged that the jury was entitled to reject the evidence of the applicant as to the circumstances in which Demirel sustained the injuries from which he died. Accordingly, counsel accepted, it was reasonably open to the jury to be satisfied to the requisite degree that whatever the act of the applicant that caused Demirel’s death may have been, it was not accidental. Self-defence was barely in issue, and the evidence in support of it was very weak.
However, counsel submitted, it was not reasonably open to the jury to be satisfied, beyond reasonable doubt, that in performing that act, the applicant intended to kill Demirel or to cause him really serious injury.
Counsel noted that the only evidence, from which the jury could infer murderous intent, was that of Dr Dodd. However, based on that evidence, the jury could not be satisfied beyond reasonable doubt that the applicant had inflicted more than one act of compressive force which resulted in the fatal injuries to Demirel.
While Dr Dodd expressed something of a preference for the view that the injuries that caused Demirel’s death resulted from more than one such act on the part of the applicant, nevertheless he could not exclude, as a reasonable possibility, that one such act had been sufficient to result in those injuries. Further, Dr Dodd could do no more than postulate a number of potential mechanisms by which that act of compressive force had been inflicted. He was not able to express any opinion as to the kind of act by which that force was applied to Demirel.
In these circumstances, it was submitted, it was not reasonably open to the jury to infer, either from the number of acts of violence inflicted on Demirel, or the nature of those acts, that the applicant had thereby intended to kill Demirel or cause him really serious injury.
Counsel accepted that the evidence, as to the degree of force by which the compression was applied to the chest of Demirel, was sufficient to permit a jury to conclude, beyond reasonable doubt, that the act or acts, by which that force was applied was or were dangerous. Accordingly, he accepted that it would have been open to the jury to convict the applicant of manslaughter.
In response, senior counsel for the respondent noted that while Dr Dodd had accepted that it was possible that the majority of the rib fractures sustained by Demirel might have been the result of one significant action of compressive force, he considered that it was more likely that there had been at least two (if not more) applications of such force. Senior counsel further submitted that the injuries to the chest were not to be considered in isolation. Demirel had sustained a number of injuries to his face, and Dr Dodd also considered that the injuries to the lower ribs had resulted from two separate applications of force. In those circumstances, it was submitted, the evidence demonstrated that Demirel, who was 73 years of age, and quite diminutive in size, though not in weight, had been subjected to a significant beating by the applicant, who was, after all, younger and substantially taller and heavier. In that context, the jury was entitled to be satisfied, beyond reasonable doubt, that the applicant intended to cause really serious injury to Demirel when he inflicted whatever the blow or blows may have been that resulted in the multiple fractures to Demirel’s ribs.
Ground 2 is based on s 276(1)(a) of the Criminal Procedure Act, that the Court must allow an appeal if it is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
In order to succeed on that ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on the charge of murder.[7] In determining that question, the appellate court must give full weight to the principle that the jury was the body which is entrusted with the principal responsibility of determining the guilt or innocence of the accused person.[8] In performing that role, the jury, ordinarily, has the advantage of having observed the witnesses, and also of having aspects of the evidence explained to it in a visual form, whether by reference to the exhibits, or by physical demonstration undertaken in the jury box by a particular witness.
[7]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); Pell v The Queen [2020] HCA 12, [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[8]M (1994) 181 CLR 487, 492–3; R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (‘Baden-Clay’); Fennell v The Queen [2019] HCA 37, [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
Nevertheless, and giving appropriate weight to that consideration, it is the role of the appellate court to consider whether, based on the evidence, it was reasonably open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt. As the High Court recently stated in Pell:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[9]
[9]Pell [2020] HCA 12, [39] (citations omitted).
Counsel for the applicant accepted, before this Court, that it was open to the jury to be satisfied beyond reasonable doubt that the action or actions of the applicant, which caused the death of Demirel, were voluntary and not accidental. Self-evidently, the jury was entitled to reject the very weak case of self-defence that had been put forward.
The issue, under ground 2, is whether it was open to the jury to be satisfied, beyond reasonable doubt, that, at the time at which the applicant performed that action or those actions, he thereby intended to kill Demirel or to cause him really serious injury.
Apart from the applicant, there was no other direct evidence as to the circumstances in which the applicant inflicted the injuries on Demirel which resulted in his death. In order to be satisfied of the guilt of the applicant, the jury was required, therefore, to conclude that the only reasonable inference, available on the evidence, was that the applicant intended to kill Demirel or cause him really serious injury, when he inflicted the blow or blows that caused the crushing injury to Demirel’s chest, and which resulted in his death.[10] For that purpose, the prosecution was almost wholly reliant on the evidence given by Dr Dodd as to the nature and extent of the injuries inflicted on the applicant.
[10]Barca v The Queen (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ); Shepherd v The Queen (1990) 170 CLR 573, 578 (Dawson J); Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 536 (Gibbs CJ and Mason J), 570 ( Murphy J); Baden-Clay (2016) 258 CLR 308, 323-4 [46].
In that respect, as noted, senior counsel for the respondent relied on two principal features of that evidence, namely, the nature and number of the non-fatal injuries inflicted on Demirel, and, secondly, the evidence of Dr Dodd concerning the number of crushing blows which he considered had resulted in the injury to the chest that caused Demirel’s death.
In respect of the first matter, Dr Dodd gave evidence as to the facial injuries sustained by Demirel. In cross-examination, he agreed that a number of those injuries could have been caused, not by a direct blow from the applicant, but instead either accidentally through contact with the applicant or by a fall. He also agreed that the injuries could have occurred through the application of force that was of mild to moderate severity. In the context of the dispute which, in one form or another, occurred between the applicant and Demirel, the jury was entitled to conclude that a number of those injuries may have been, or were, intentionally inflicted by the applicant. However, in light of the nature and number of those injuries, and the other potential modes by which they could have been caused, it was not open to the jury to infer that the applicant had inflicted them with an intention of causing Demirel really serious injury. At most, those injuries bespoke a hostile intent by the applicant towards Demirel.
The same proposition applies to the non-fatal injuries to Demirel’s chest. Dr Dodd explained that a number of those injuries, in particular to the floating ribs, could have been caused by separate blows such as kicking or punching. However, the evidence did not suggest that the blows were inflicted with such force or severity as to support an inference that, at the time at which he inflicted those injuries, the applicant thereby intended to cause Demirel really serious injury or to kill him.
Taken together, then, the non-fatal injuries sustained by Demirel did not bespeak, or support an inference, that the applicant, at the relevant time, intended to kill Demirel, or to cause him really serious injury.
In those circumstances, the prosecution case, on the issue of murderous intention, was based almost entirely on the evidence of Dr Dodd as to the compressive force injuries to Demirel’s chest which resulted in his death. As we have discussed, when considering ground 1, it was not open to the jury to form any conclusion, on the evidence, as to the mechanism by which that crushing injury had been caused to Demirel. As conceded by counsel for the applicant, it was open to the jury to be satisfied, beyond reasonable doubt that, the injury had been inflicted on Demirel by a conscious and voluntary action of the applicant that was not performed by him in self-defence. However, otherwise, any conclusion by the jury, as to the means by which that injury had been inflicted on Demirel, would be the product of conjecture, and not based on the evidence that was before the jury. Consequently, in considering whether it was satisfied, beyond reasonable doubt, that the applicant had inflicted that injury with the intention of killing Demirel or causing him really serious injury, the jury did not have the advantage of any evidence as to the particular mechanism by which Demirel sustained that injury.
Accordingly, the prosecution case was reliant, almost solely, on the evidence by Dr Dodd as to the number of applications of compressive force that were required to cause the fatal injury to Demirel’s chest. In considering that matter, the prosecution faced the difficulty that, on a number of occasions in cross-examination, Dr Dodd accepted that it was possible that that crushing injury may have resulted from one application of force, albeit that, at the same time, Dr Dodd expressed a preference for the view that more than one such application of force would have been involved in that process.
In his evidence-in-chief, having described the nature of the compressive injury to Demirel’s chest, Dr Dodd expressed the view that overall the pattern of the fractures indicated ‘a very forceful front to back compression of the chest against a firm surface’. When asked how many discrete applications of blunt force might have been inflicted, he responded:
It’s difficult, it’s easy when we’re looking at the side of the head, I would be comfortable saying one blow here, one, possibly two to the left side, in terms of the ribs, I think it’s more than one episode of compression, I would say it’s multiple, but however three, four or five I couldn’t say. … [S]o I can’t give you a figure, but I could say it would have been multiple.
In cross-examination, counsel for the applicant put to Dr Dodd that a significant number of the fractures were probably caused through a single event. Dr Dodd responded:
[P]erhaps not a single event, maybe multiple applications of force, but as opposed to kick, kick, kick, for instance, where it may explain one or two isolated fractures, it’s more of a compressive force overall to the chest which has caused the majority of these fractures and that force may have been repeated two or three times, I can’t say.
The doctor then stated that while the majority of the fractures of the middle and upper ribs had been caused by ‘a symmetrical compressive force from the front backwards’, he did not consider that some of the fractures involving the lower ribs (particularly the floating ribs) were compressive in nature, and were more likely the result of ‘an isolated blow to those regions’.
A short time further on in the cross-examination, the following exchange occurred:
A single compression to the front of the chest of sufficient force could account for a significant number of those injuries that are described in both the left and right‑hand sides? – – – It could do. When you start talking about flail segments and fractures at different points, the ones up in the middle that are up and down in line, there a few which are a bit further forward and further back and out flyers, they may represent a second application of force, but the majority of those fractures, the symmetrical ones could in theory be caused by one very significant episode of compression, but you can’t exclude more.
So am I correct in saying that a single application of sufficient force to the front of the chest could account for all of those anterior fractures? – – – Yes.
Counsel continued to pursue the same topic. When asked whether the injuries could have been caused by a grown adult male, weighing 100 kilograms, falling with the full weight of his body travelling through his knees onto the chest of the deceased, Dr Dodd responded ‘Possibly’.
Dr Dodd then agreed with the proposition that the fact, that the incident occurred on a hard tiled floor, was consistent with the hypothesis that ‘a single large compression of the chest could have accounted for almost all of the rib fractures’.
At the conclusion of cross-examination, the following exchange occurred:
And it follows from that, doctor, doesn’t it, that it’s really the presence of, my phrase not yours, but some kind of catastrophic event that’s caused the crushing injury to the chest? – – – Yes.
Which is the lethal injury as far as you’re concerned? – – – Yes indeed.
That is an injury that could have occurred in a single episode with sufficient application of force over a diffuse area of the chest? – – – Yes, I am of the opinion that there may have been more application of force, but potentially could be one very large forceful impact.
Pausing there, as the evidence of Dr Dodd stood at the end of cross-examination, he had accepted the proposition that it was possible that the symmetrical fractures to the ribs had been caused by one large forceful impact.
That proposition gained support from Dr Dodd’s explanation that, in Australia, he had seen similar injuries inflicted in incidents involving a singular compressive force, such as the impact of a steering wheel on the chest of a driver in a high speed motor vehicle accident, and an industrial accident in which a large heavy object has been dropped on the chest of the victim. At the commencement of his re-examination, Dr Dodd again referred to those mechanisms, as well as the particular methodology that was employed in the civil war in the Solomon Islands. Significantly, each of those mechanisms involved the imposition of one severe compressive force to the chest area of the victim.
It was in that context that Dr Dodd was then asked the following question, and gave the following response, in re-examination:
When you said that it may have been repeated two or three times, but then added the caveat, ‘I can’t say’, how comfortable are you to have it remain in likelihood within those perimeters of two or three times? – – – I am comfortable with the proposition that more than one episode of compression occurred. Whether I take it to three or four, I’m not sure I can do that. The reason I’m saying that is that the fractures are quite symmetrical, but I’m impressed by the severity of the flail segment formation which we explained yesterday, I can’t imagine all those flail segments occurring spontaneously after one application of force. I think the mirror fractures to the side of the ribs and the back could easily be explained by one episode of force, ribs have broken now and a succession of applications of force have caused additional fractures leading to flail segments and I think one definitely, two very likely, three after that I can’t say.
A short time later, Dr Dodd again returned to the same topic. At that point he said:
And which ones are they, are you able to identify them? – – – Where we have the extreme flail segment formation say on left rib 7 and 8, where there are three fractures not two, and on the right side, rib No.4, for instance, has three fractures not two. All the others are anterior and lateral, and some are posterior only, some are anterior only. So I think the overall pattern is very symmetrical, the majority of these fractures could be explained by one very forceful application of compression, the complicating ones creating those flail segments, in my opinion, may have required an additional application of force.
In considering the evidence we have just outlined, it is important to understand the nature of the qualification that Dr Dodd expressed in response to the proposition, that was put on behalf of the applicant, that one single compressive force might have accounted for the large majority of the fractures to Demirel’s ribs. The two aspects of the injury, sustained by Demirel, that gave rise to that qualification, were the fractures to the floating ribs and the flail segments. However, it is clear that Dr Dodd was of the view that the injury to the floating ribs may have been caused by a different, non-compressive force, such as a punch or a kick. In particular, he agreed that if the deceased had been kneed on more than one occasion to the lower ribs, that could account for the injuries observed by Dr Dodd to both of the floating ribs.
The reservation that Dr Dodd expressed about the flail segments was less specific. He stated that those segments ‘may represent’ a second application of force, but he did not describe the type of such force that was required.
In its totality, then, the evidence of Dr Dodd could not exclude the hypothesis, advanced on behalf of the applicant, that the majority of the injuries to the chest, comprising the symmetrical fractures which caused the death of Demirel, had been the product of one single large compressive application of force to that area of the body. While some of the fractures — the flail segments and the fractures to the floating ribs — might have been the product of two or more applications of force, Dr Dodd did not suggest that such additional applications of force must have been compressive in their nature.
It follows, from the foregoing, that the prosecution case was almost wholly reliant on the proposition that the large majority — if not all — of the fatal injuries to the chest of Demirel had been occasioned by one single application of significant compressive force by the applicant. At the risk of repetition, the jury had no basis upon which to form any conclusion, on the evidence, as to the manner in which that compressive force had been applied to Demirel’s chest. In essence, it had no more than the evidence that the particular application of compressive force must have been at least moderate to severe, if not severe.
In those circumstances, as counsel for the applicant sensibly conceded, it was well open to the jury to conclude that, no matter how the fatal wound was inflicted upon Demirel, it was the product of a dangerous (and unlawful) act perpetrated by the applicant. However, we do not consider that the evidence, that death resulted from one unknown significant application of severe force to the chest of the deceased, could have enabled the jury, in the circumstances of the case, to have rationally concluded, beyond reasonable doubt, that the applicant intended to kill Demirel or cause him really serious injury, at the time at which he applied that force to him. In view of the limited evidence as to the nature of the blow that resulted in the fatal injuries to Demirel, the jury could not reasonably conclude, from that evidence, that the only reasonable inference available to it was that the applicant inflicted that injury with the intention of killing Demirel or causing him really serious injury.
It follows that the application for leave to appeal should be allowed, and the appeal granted, on ground 2, as well as ground 1.
Summary of conclusions
For the reasons we have stated, we have concluded that the application for leave to appeal against conviction should be allowed on both grounds 1 and 2, and the appeal allowed on each of those grounds.
In the course of submissions, we discussed with counsel what outcome should ensue if we were to reach those two conclusions. It was agreed, by both parties, that in the particular circumstances of this case, it would be appropriate for the Court to quash the jury’s verdict, and the applicant’s conviction, on the charge of murder, that the Court should in lieu enter a judgment of acquittal on that charge. It was further agreed that the Court should instead enter a judgment of conviction for manslaughter pursuant to s 277(1)(c) of the Criminal Procedure Act. We were told by counsel that the applicant had, from an early stage, offered to plead guilty to manslaughter, that being, of course, a matter that would be highly relevant to any sentence that might ultimately be imposed for that offence.
In our view, that position, taken by the parties, was entirely appropriate. Strictly speaking, as a consequence of our conclusions on ground 1, the applicant would be entitled to a re-trial on the charge of manslaughter. However, counsel for the applicant correctly conceded that, on the evidence before it, the jury was entitled to be satisfied beyond reasonable doubt that the death of Demirel was caused by an unlawful and dangerous act by the applicant. On a retrial, the applicant would have only the slimmest prospect of avoiding a conviction for manslaughter. If he were to stand his trial on that charge, he would detract from the benefit of his previous offer to plead guilty as an important mitigating factor.
In those circumstances, on the evidence at the trial, the jury must have been satisfied of the facts necessary to prove that the applicant was guilty of manslaughter.
Accordingly, we shall make the following orders:
(1)The applicant be granted leave to appeal against conviction.
(2)The appeal against conviction is allowed.
(3)The verdict entered against the applicant and the applicant’s conviction of murder are quashed and the applicant’s sentence imposed on 13 March 2019 be set aside.
(4)In lieu, the applicant be convicted of the manslaughter of Rafet Demirel on 11 February 2017.
Upon delivery of judgment, we shall discuss with counsel the appropriate means by which the applicant might be re-sentenced for manslaughter.
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