Director of Public Prosecutions v Kerr (ruling No 2)
[2014] VSC 604
•9 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No S CR 2012 0151
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRACEY KERR |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April, 1-2, 5-7 May 2014 | |
DATE OF RULING: | 9 December 2014 | |
CASE MAY BE CITED AS: | DPP v Kerr (ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 604 | |
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CRIMINAL LAW – Murder – “No case” submission – Circumstantial case on causation – Whether jury could rationally exclude all reasonable hypotheses consistent with innocence – Case to answer
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Rose QC Mr G Hayward | Office of Public Prosecutions |
| For the Accused | Mr S Tyrrell Ms C Hollingworth | Victorian Aboriginal Legal Service |
HER HONOUR:
Introduction
The accused, Tracey Kerr, was charged with murdering Douglas Barrett on 26 May 2012, in the bungalow at the back of his property.
At trial, there was no dispute that Mr Barrett died from a fatal cardiac arrhythmia; however, there was a dispute as to whether one or more acts of Ms Kerr had contributed significantly to, or been a substantial and operating cause of, that fatal arrhythmia. In summary, the prosecution case was that the arrhythmia was caused by the oculocardiac reflex (from some eye-related injuries), neurogenic shock (from a stab wound to the neck), or a combination of the two. The defence case was that the jury could not be satisfied beyond reasonable doubt that the arrhythmia was not caused by a combination of Mr Barrett’s pre-existing heart problems with stress or excitement, quite independently of any injuries inflicted by Ms Kerr.
At the close of the prosecution case, on 6 May 2014, defence counsel made a “no case” submission in relation to the issue of causation. After hearing argument, on 7 May 2014 I determined that there was a case to answer.[1] I said that I would publish my reasons at a later date; these are those reasons.
[1]At the end of the trial, the jury found Ms Kerr not guilty of murder, but guilty of manslaughter.
“No case” principles
There was no dispute about the principles governing an application such as this one. The starting point is 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]
[2]Doney v R (1990) 171 CLR 207, 214-5.
In assessing a “no case” submission, the judge is to take the prosecution evidence at its highest, and to draw all inferences most favourable to the prosecution which can reasonably be drawn from the primary facts.
The prosecution accepted that, in relation to causation, the prosecution case was a circumstantial one. In a circumstantial case, a “no case” submission will succeed only if:
(a) A reasonable inference consistent with innocence is open; and
(b) That inference cannot be rationally excluded by the jury.
In such a case, the judge is not required to decide whether the prosecution has in fact excluded every hypothesis consistent with innocence; that is a question of fact for the jury. Rather, the judge must decide whether a reasonable jury could exclude all inferences consistent with innocence.
Causation principles
To have caused the victim’s death, the accused’s act(s) must have contributed significantly to the death, or been a substantial and operating cause of it. The accused’s act(s) do not need to have been the sole cause of death; a person can be criminally responsible for a death that has multiple causes, even if they are not responsible for all of those causes.[3]
[3]Royall v R (1991) 172 CLR 378.
Even if the victim is suffering from a condition that is threatening death, an accused may accelerate the victim’s death in a way that meets the test of causation.[4]
[4]R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174.
Causation is a question of fact. The jury is not to determine causation as a philosophical or scientific question, but by applying their common sense to the facts as they find them, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter.
The evidence relevant to causation
The prosecution called Dr Sarah Parsons, the forensic pathologist who performed the autopsy on Mr Barrett.
Dr Parsons gave evidence that Mr Barrett had around 20 injuries to his head and body, some of which were incised injuries, others were abrasions or lacerations. They included at least nine small incised injuries around the eye area, which she said could have been caused by sharp fingernails, or by the movement of a sharp object, such as a knife. There was also an incised injury to the forehead, and a stab wound to the neck, both of which could have been caused by a sharp object, such as a knife.
Asked in her evidence-in-chief whether she would describe any of the injuries as fatal injuries, Dr Parsons replied: “I put the cause of death as stab wounds to the neck and eyes.”[5] After elaborating on the relevant terminology, she said that the likely cause of Mr Barrett’s death was “either one or a combination of either of those two reflexes, the oculocardiac reflex or spinal shock”,[6] brought about by the stab wounds to the eyes or neck. In cross-examination, Dr Parsons accepted that it would have been more accurate for her to have reported the injuries as “incised injuries to the eyes” (rather than “stab wounds to the eyes”), and a stab wound to the neck.[7]
[5]T188.
[6]T189.
[7]T204.
As far as the neck injury was concerned, the stab wound tract went from the neck into the space between the spinal cord and the dura (a fibrous sheet close to the spinal cord). It was not possible to say whether the knife definitely went into the spinal cord, but it had punctured the dura, and caused haemorrhage in the extradural and subdural spaces. When there is injury to the spinal cord area (including the dura):
you can have a reflex called neurogenic shock and this occurs after an injury to the spinal cord, particularly the cervical spinal cord, and this results in hypotension, which is a drop in blood pressure, and you can get bradycardia, which is slowing of the heart, and this can led to sudden death.[8]
[8]T189.
Dr Parsons had seen instances of neurogenic shock when working in an emergency department.
Dr Parsons said that the injury to the spine, in particular, is likely to have caused sudden death. Initially, she said that if that happened, the victim could not move around and would drop dead on the spot. Later in cross-examination, Dr Parsons said that neurogenic shock can lead to somebody dropping dead on the spot, or “it can cause bradycardia and hypotension, which can lead to the arrhythmia over a period of time.”[9]
[9]T217-8.
Dr Parsons said that the oculocardiac reflex can be caused by injury or pressure to the eyes, or the surrounding tissues such as the eyelids or the muscles around the eyes, which can lead to vagal stimulation. The vagus nerve directly affects the heart, and if you have “unopposed vagal stimulation, which you can get with pressure on the eyes, that can lead to a cardiac arrhythmia and sudden death.”[10] Later, she said that the oculocardiac reflex “may” cause sudden death.[11]
[10]T189.
[11]T193.
Most of the research concerning the oculocardiac reflex concerned injuries sustained during surgery, although Dr Parsons had also read one forensic article about a case where somebody had received penetrating global injuries. As well as knowledge from her research, Dr Parsons had also seen the oculocardiac reflex, firsthand, in a clinical setting.
Dr Parsons identified a number of significant cardiac problems, from which Mr Barrett was suffering at the time of his death:
(a) He had cardiomegaly, being an abnormally-enlarged heart;
(b) He had coronary heart disease, and had had coronary artery bypass grafting. The grafting had happened “a long time ago”, as there was some coronary artery disease to the grafts, as well as to the natural or native blood vessels. The disease would make it more difficult for blood to get through the affected blood vessels; and
(c) Previous heart attacks and surgery had caused widespread areas of fibrosis and adhesions in the heart. Fibrous tissue means there is no muscle in that area, and the heart does not beat as effectively, or may beat irregularly.
Each of these cardiac conditions meant that Mr Barrett was at an increased risk of sudden death, if there was increased stress on his heart. He was also taking medication for hypertension, or high blood pressure.
A “heart attack” is a generic term which is used to describe a number of things, cardiac arrhythmia being one of them. If someone has a fatal cardiac arrhythmia, death can occur within seconds.
It is not possible to tell when a heart attack starts. And, unless a person survives for at least 12 hours after a heart attack, an autopsy will not disclose what caused the heart attack.
It is possible that Mr Barrett was suffering a heart attack before any of the accused’s actions occurred. Dr Parsons agreed that, if a heart attack was beginning, and then Mr Barrett suffered some major stresses, this could cause or encourage the fatal arrhythmia.
Asked whether there was anything to indicate that Mr Barrett would have suffered a heart attack without the stab wounds, Dr Parsons replied:
In circumstances where someone is found deceased in circumstances where they are either found dead in bed at home or out in the garden gardening, and there is no other cause of death that we can determine either on the circumstances, someone with these findings in their heart, we would put the cause of death out as ischemic heart disease because there are no other competing factors.[12]
[12]T190.
Of course, Dr Parsons’ evidence was not the only evidence relevant to causation, and the factual examination which the jury had to undertake.
In her record of interview, Ms Kerr admitted that she had stabbed Mr Barrett with a sharp object, which she thought was either a knife or a screwdriver. She thought she had only stabbed him once, in the eye area. Ms Kerr gave a number of accounts of what had happened in the bungalow that evening, which were at times confusing and contradictory (both to her other accounts and to the physical evidence).
In addition, there was physical evidence concerning the state of the bungalow, including the existence of overturned chairs and various items scattered around the bungalow. There was evidence about the state of Ms Kerr’s and Mr Barrett’s clothing. There was also evidence about the nature and extent of bloodstaining around the bungalow.
The jury’s task was not to consider Dr Parsons’ evidence in some sort of scientific vacuum; rather, it was to consider her evidence in the context of all the other evidence relevant to causation.
The “no case” submission
In their written outline, defence counsel relied upon the following four arguments.
The mutual exclusivity argument
First, the defence argued that the fatal arrhythmia could not have been caused by a combination of the neurogenic shock and the oculocardiac reflex; they said it had to be one or the other. They said that the jury could only speculate as to which was the relevant act; and, as neither act could be excluded, the jury would be unable to determine a cause of death. There were a number of flaws with this argument.
For a start, the argument was inconsistent with the evidence of Dr Parsons. At no time in her evidence did Dr Parsons say (explicitly or implicitly) that oculocardiac reflex and neurogenic shock were necessarily mutually exclusive. On the contrary, her opinion at all times was that the arrhythmia could have been caused by one or both of those things. Either of them could cause a sudden death, or a slower death.
I accepted that the jurors would have to be unanimous in their decision as to which act(s) caused death, in order to assess whether Ms Kerr possessed a murderous intention at the time of the relevant act(s).
However, the prosecution were not inviting the jury to simply speculate as to which act(s) caused death, as asserted by the defence. Rather it was for the jury to be satisfied beyond reasonable doubt as to the causative act(s), after considering Dr Parsons’ evidence, in the context of all the other evidence relating to what went on in the bungalow that evening.
The oculocardiac reflex argument
Defence counsel said (quite rightly) that if it was the oculocardiac reflex which caused death, then the prosecution would need to prove beyond reasonable doubt that Ms Kerr had the requisite intention when she caused the eye injuries.
Dr Parsons accepted that the multiple eye injuries could have been caused by a sharp implement (such as a knife), or by sharp fingernails.
The defence submissions then asserted that “It is most unlikely that the accused, give her state of sobriety, caused a single or a series of small precise incisions with a sharp object other than fingernails …”. But that was a factual question for the jury to decide, on all the evidence; it was not a reason to uphold the “no case” submission.
There was no dispute that both Ms Kerr and Mr Barrett were extremely intoxicated that evening; it was for the jury to assess what effect that may have had on her actions, and on the accuracy of her subsequent accounts of her actions. Ms Kerr said she had stabbed Mr Barrett once with a sharp object; she thought she had stabbed him in the eye.[13] Although she also said that she had pushed Mr Barrett away when she thought he was trying to rape her, she had not said anything about having scratched the area around his eyes.
[13]Her record of interview did not mention stabbing him in the neck, or causing any of the other injuries identified by Dr Parsons.
In determining how the injuries to the eye area were caused, and what, if any, effect those injuries had in terms of causing the arrhythmia, the jury would need to consider Ms Kerr’s record of interview in the context of Dr Parsons’ evidence, together with all the other evidence relating to what may have happened in the bungalow.
The neurogenic shock argument
The next argument asserted that the prosecution theory was “sudden death by neurogenic shock”, and that theory could not be supported by the evidence. However, it was not a necessary part of the prosecution case that Mr Barrett died immediately or suddenly after being stabbed in the neck; the prosecution case was that he may have done so, or he may have died some time later.
The prosecution case was consistent with Dr Parsons’ evidence that death by neurogenic shock could happen immediately, or it could cause bradycardia and hypotension, which can lead to arrhythmia “over a period of time”.
Defence counsel pointed to the evidence of the blood pattern expert, Ms Pirie, which suggested that Mr Barrett had moved around the bungalow, bleeding, for some time after sustaining a bleeding injury. Defence counsel also pointed out that, in her record of interview, Ms Kerr said Mr Barrett was bleeding and moving around, and continued yelling and arguing with her for 5 to 10 minutes after she stabbed him, before he dropped face up in front of her. None of that evidence (if accepted) was necessarily inconsistent with the prosecution case.
It was for the jury to conclude, on all the evidence, how many injuries Ms Kerr had caused Mr Barrett, in what order, and with what consequence.
The state of Mr Barrett’s heart
Dr Parsons accepted that Mr Barrett suffered from a number of significant cardiac problems, which meant he had an increased risk of heart attack, particularly if there was increased stress on his heart. Those stressors could have included fear or excitement, as well as a struggle or physical attack.
Defence counsel argued that the jury could not reject as unreasonable or fanciful the possibility that Mr Barrett died from a heart attack, which was wholly unconnected with any of Ms Kerr’s actions. For example, it was argued that he might have suffered from a heart attack, in circumstances where he was drinking heavily, dancing and (according to Ms Kerr) attempting to have forced sex with Ms Kerr.
The prosecution argued that the most that the defence had pointed to was that Mr Barrett may have physically exerted himself prior to death, which exertion may have increased his risk of “natural” death. The fact that this may have been a hypothesis consistent with innocence does not necessarily mean that there was no case to answer.
The prosecution argued that the jury could reject that hypothesis as unreasonable or fanciful, given the state of the evidence. The prosecution pointed out that there was no evidence (including in Ms Kerr’s own record of interview) to suggest that Mr Barrett was showing any of the signs of a heart attack, prior to the moment when he dropped to the ground. On the other hand, there was evidence that Ms Kerr inflicted several injuries on Mr Barrett, which could have caused the fatal arrhythmia, shortly before he died.
Once again, it was for the jury to evaluate all the evidence relevant to causation to determine what caused the fatal arrhythmia.
Conclusion
As at the conclusion of the prosecution case, a reasonable mind could have reached a conclusion of guilt beyond reasonable doubt on the question of causation. A reasonable mind could also have excluded the hypothesis that Mr Barrett died from a heart attack which was wholly unconnected with the actions of Ms Kerr.
For these reasons, I ruled that there was a case to answer.
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