Director of Public Prosecutions v Feetham
[2023] VSC 619
•16 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0182
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ASHLEY ROY FEETHAM | Accused |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF NO CASE SUBMISSION: | 16 October 2023 |
DATE OF RULING: | 16 October 2023 |
CASE MAY BE CITED AS: | DPP v Feetham |
MEDIUM NEUTRAL CITATION: | [2023] VSC 619 |
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CRIMINAL LAW – Murder- Submission of no case to answer – Whether jury could exclude inference that fatal stab wound unintentional.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr MJ Gibson KC with Mr J Kelly | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | HA Rattray | Balmer & Associates |
HIS HONOUR:
The accused, Ashley Feetham, is charged with the murder of Dylan Bond (charge 1) and with intentionally, or alternatively, recklessly, causing serious injury to Heath Bond (charges 2, 3). The prosecution case is closed. Mr H. Rattray, who appears on behalf of the accused man, has submitted there is no case to answer on charge 1 (murder), and on the statutory alternative charge of manslaughter.
The incident, which gave rise to the charges, occurred on 26 April 2021 at premises at 2A Fagg Street Thomson. For over one year before the incident, Heath Bond had resided at those premises with his then fiancé, Abbey Sexton. He moved out of the premises in early April 2021, after he became aware that a romantic relationship had developed between Ms Sexton and the accused man.
In the early hours of Sunday, 25 April 2021, Heath Bond (‘Heath’), by chance, met with Ms Sexton while they had each been out drinking separately in the Geelong central business district area. After they had a lengthy conversation between them, they were joined by the accused man. Shortly after he arrived, a physical altercation took place between the two men. After they were separated by other persons, Heath left the scene. On the following day, and on Monday, 26 April, a number of text and other messages passed between the parties, including Heath’s brother, Dylan Bond (‘Dylan’).
It was in that context that Dylan and Heath attended at the premises at 2A Fagg Street, at about 3:45 pm on 26 April. After they arrived there, Heath made his way to the sliding door in the side of the premises, which gave access to the meals and kitchen area of the premises. He opened the door. He was followed shortly after that by Dylan. In the incident that followed, Dylan sustained some four knife wounds, including a stab wound to the chest, which resulted in his death. Heath also sustained a stab wound to the left chest area, which penetrated his left diaphragm, his gall bladder, and the front of his stomach.
The prosecution case is based substantially on the evidence of Heath Bond. In his evidence, Heath said that when he made his way to the side door and opened it, he was met by the accused man, who immediately stabbed him in the chest. Heath had first seen the accused man standing at the doorway between the kitchen and the loungeroom. As the accused man made his way around the kitchen bench, he was holding a knife in his hand, which he used to stab Heath in the left side of the rib cage. Heath then called out to Dylan, who rushed to his side. The accused man, who was standing in the doorway, then stepped closer towards Dylan and Heath. In response, Dylan rushed towards the accused man and restrained him. As a result, the accused and Dylan had moved back to the doorway of the laundry area, which was opposite the sliding door. Dylan then had his left hand on the accused’s shoulder, and was using his right hand to strike the accused man in the face. At the same time, Heath observed the accused man swing with his right arm over Dylan’s left arm and stab Dylan in the chest. Heath saw the accused stabbing Dylan in the chest cavity over Dylan’s arm, and he believed that he saw Dylan being stabbed ‘five, six times to the central chest’. The accused had the knife pointed upright in his right hand, but as he came over Dylan’s left arm, he had it pointed down to Dylan’s chest.
In his evidence, Heath gave a demonstration of the actions of the accused man, describing it as a round arm motion into Dylan’s chest. At that point, Heath was standing right next to Dylan. He said that the accused man’s sister, Melissa Feetham, then entered the premises and struck both Dylan and Heath with a rake. In response, Heath grabbed the rake and threw it away. His next observation was that Dylan let go of the accused. Dylan and Heath both moved backwards towards the sliding door. However, a couple of seconds later, Dylan’s eyes rolled back in his head and he collapsed. Following the incident, the accused, who sustained an injury to his hand, left the premises and was conveyed to the Geelong Hospital. The police and ambulance were summoned. Emergency treatment was administered to Dylan, but he was unable to be revived, and was pronounced to be deceased at 4:25 pm.
Dr Sarah Parsons, a forensic pathologist with the Victorian Institute of Forensic Medicine, conducted an autopsy on the body of Dylan Bond on the following day, 27 April. Dr Parsons described four knife wounds that had been sustained by Dylan. The first, which was fatal, was a stab wound to the left lateral chest, which penetrated through the fifth rib, and which incised the left upper lobe of the lung, the pericardium, the left ventricle, the mitral valve and the diaphragm, and penetrated into the liver. The wound track was approximately 14 centimetres in length. The second wound was a stab wound to the left hip that extended into the left gluteus maximus, with a wound track of 14 centimetres. The third wound was an incised injury to the left lower flank, which extended some 12 centimetres. The fourth injury was a ‘through and through’ sharp force injury to the buccal mucosa, which is the inside of the lip.
Submissions
In essence, the fundamental submission, made on behalf of the accused man, is that the evidence, that has been adduced in the trial, is incapable of excluding an hypothesis consistent with the innocence of the accused man, namely, that the fatal wound was inflicted at some point when Dylan charged at the accused man, and that the infliction of the wound was not by way of any intentional stabbing by the accused, but, rather, by way of the momentum of Dylan running into the accused while he was holding the knife. Accordingly, it is submitted that the prosecution case is incapable of excluding an hypothesis consistent with innocence, namely, that Dylan ran into the knife, held by the accused, so that the infliction of the fatal wound was not a consequence of any conscious, voluntary and deliberate act of the accused man.
In support of that submission, Mr Rattray noted that, in his evidence, Heath said that after he had been stabbed in the chest by the accused, he stepped backwards, outside the house. At that time, the accused man was standing on the doorframe. Dylan then rushed in and started to restrain the accused, and charged at him. Counsel noted that there was some short period of time in which, in those events, Dylan and the accused were inside the house and Heath was not witnessing what occurred. During that period, Dylan and the accused had moved their position. Heath’s next sighting of them was when they were positioned against the laundry doorframe. Counsel particularly relied on the evidence, given by Heath, that, by the time he got to the accused and Dylan, he could already see that Dylan’s jumper was drenched in blood. He then saw the accused stab Dylan five or six times in an overhand motion, striking Dylan’s chest area.
In those circumstances, Mr Rattray has submitted that a jury could not rationally exclude the possibility that Dylan had already been fatally stabbed by the time that Heath arrived at his side at the laundry doorframe. In those circumstances, it was submitted, the jury could not rationally exclude the possibility that Dylan had already been fatally stabbed unintentionally, with the accused man holding the knife and Dylan running into it, or it being forced into his chest, when the accused’s arm hit the wall behind him.
In response, Mr M. Gibson KC, who appears with Mr J. Kelly for the prosecution, submitted that the evidence of Heath would preclude the jury drawing an inference that it is reasonably possible that Dylan had been stabbed before Heath looked up and saw the accused against the laundry wall, with the accused stabbing Dylan to the left upper chest. Mr Gibson submitted that any hypothesis, that Dylan had been wounded in the meantime, would be a matter of impermissible speculation. Mr Gibson further contended that the hypothesis, contended for on behalf of the accused man, was based on an assumption that the description, given by Heath, of the critical part of the incident, was strictly sequential. He submitted that it was open to the jury to understand Heath as having said in his evidence that it was at the time at which he saw the accused stabbing Dylan that he then observed Dylan’s jumper being drenched in blood.
Legal principles
The principles, which apply to a no case submission, are well-established. The test, which is to be applied, is quite distinct from the principles that are applied, by an appellate court, in determining whether a jury verdict of guilt is unreasonable or not able to be supported having regard to the evidence, pursuant to s 276(1)(a) of the Criminal Procedure Act 2009. Rather, the question is whether the evidence adduced by the prosecution, taken at its highest, is capable of sustaining a verdict of guilt.
In Doney v The Queen,[1] the High Court stated that principle in the following terms:
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.[2]
[1](1990) 171 CLR 207.
[2]Ibid 214-15.
The prosecution case, being based on the direct evidence of Heath, does not rely on any inference in order to prove the act by which, it alleges the accused fatally wounded Dylan. However, the submission made on behalf of the accused is based on an inference relating to that issue, that is consistent with the accused man’s innocence.
In a case in which the prosecution relies on an inference in order to establish an element of the crime charged, a trial judge does not have power to direct an acquittal on the basis that, at the end of the prosecution case, the judge considers that there is still open, and may not be excluded, a reasonable hypothesis of the facts consistent with innocence.[3] Rather, in such a case, the test, that the trial judge must apply, is whether, taking the evidence at its highest, the jury could rationally exclude any inference that is consistent with innocence.[4] Applying that principle to the present case, I do not have power to direct an acquittal of the accused, unless I conclude that the jury could not rationally exclude the inference, relied on by the accused, as not being open on the evidence.
[3]Attorney-General’s Reference No 1 of 1983, [1983] 2 VR 410, 415-16.
[4]DPP (No 2) (1993) 70 A Crim R 323, 327 (King CJ); R v Cengiz [1998] 3 VR 720, 735 (Harper AJA); DPP v Iliopoulos [2016] VSC 132, [9] (Kaye JA); R v Frank (No 2) [2021] VSC 7, [146]-[158] (Croucher J).
In The Queen v A2,[5] Kiefel CJ and Keane J expressed those principles in the following terms:
Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open. If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence. The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis. Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution’s case or that supports the accused’s case. That requires consideration of the evidence.[6]
[5](2019) 269 CLR 507.
[6]Ibid 536 [91] (citations omitted).
Accordingly, in the context of this case, the test which I must apply is whether, accepting the account given in evidence by Heath Bond, the jury could rationally conclude that the hypothesis, contended for by the accused, namely, that the fatal wound to Dylan was not deliberately inflicted by the accused, is not reasonably open on the evidence.
Analysis and conclusion
The submission by Mr Rattray is based on the circumstance that Heath Bond did not observe the part of the incident between the point at which Dylan ran at the accused man, and the point at which he next observed Dylan face to face with the accused, with the accused’s back against the laundry wall. Fundamentally, it is submitted that, in those circumstances, the jury could not exclude, as a reasonable possibility, that Dylan had sustained the fatal injury by the time that Heath next observed the accused man stabbing Dylan five or six times with the knife while his back was pressed up against the laundry wall.
The critical question, then, is whether the jury could rationally conclude that that inference is not reasonably open in the circumstances.
In considering that issue, it is, first, important to keep in mind the context of the incident as described by Heath in his evidence. That evidence was that the moment that he opened the sliding door, the accused man rushed at him with the knife, and immediately stabbed him. That is, according to Heath’s evidence, from the outset, the accused man was intent to immediately use the knife to stab Heath.
In the same way, Heath’s first observation, shortly after he saw Dylan rush at the accused, was the action of the accused man stabbing Dylan in the chest multiple times. Heath said that he observed some five or six such blows, each aimed at the chest area. Dr Parsons identified two knife wounds to that region of the anatomy. The first was the fatal wound to the left lateral chest, and the second was the incised wound to the left lower flank. Allowing for some imprecision, it may be possible to include the wound to the left hip as falling into the same category. That is, Heath observed at least the same number, and indeed more, deliberate stabbing actions by the accused, directed to Dylan, which are consistent with the number and location of the injuries to the upper body, including the fatal wound.
The submission, made on behalf of the accused man, places significant emphasis on the precise sequence of events, described by Heath in his evidence, and the timeframe in which he was unable to observe those events when he was doubled over, after he received the injury to his chest. In my view, the jury could quite properly conclude that, in his evidence, Heath was describing events which occurred almost simultaneously, and that his evidence was not strictly sequential. In particular, Heath said that after Dylan had rushed in to restrain the accused, he (Heath) rushed to his brother’s side, but froze next to Dylan when he saw his jumper already drenched in blood. He said that he was then seeing Dylan strike the accused in the face with his right hand, and the accused striking Dylan in the chest cavity over Dylan’s arm.
In those circumstances, if the jury were to accept the evidence, given by Heath, it could readily conclude that the accused man intentionally stabbed Heath and Dylan very shortly after they each respectively entered the premises through the sliding door. It would further be open to the jury to accept that, in his evidence, Heath was describing events that occurred contemporaneously, and not strictly sequentially. It would also be open to the jury to accept, on the evidence, that Heath first saw Dylan drenched in blood at the time at which Heath was already standing at Dylan’s side, and while Dylan and the accused man were exchanging blows, Dylan with his fists, and the accused man with the knife.
There is no evidence that Dylan sustained any wound, and in particular the fatal wound, in the short period in which Heath did not observe the interaction between Dylan and the accused man. The depth of the fatal wound, and its track, were consistent with the motion described by Heath in his evidence.
Taking those matters into account, I consider that the jury could rationally exclude the hypothesis, contended for on behalf of the accused, that Dylan sustained the fatal wound at some point between when he charged at the accused and when Dylan pushed him against the laundry wall, as not being reasonably open on the evidence. It follows that the jury could rationally exclude the hypothesis that the fatal injury, sustained by Dylan, was not the result of a deliberate and intentional act by the accused man.
Accordingly, I do not uphold the no case submission, made on behalf of the accused man.
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