Dookheea v The Queen
[2016] VSCA 67
•12 April 2016 (first revision 26 April 2016)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0283
| KRITSINGH DOOKHEEA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH JA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 6 August and 28 October 2015 |
| DATE OF JUDGMENT: | 12 April 2016 (first revision 26 April 2016) |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 67 |
| JUDGMENT APPEALED FROM: | Dookheea v The Queen (Unreported, Supreme Court of Victoria, Emerton J, 4 December 2014) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Intent – Intent must accompany act(s) which caused death – Whether directions adequate – Whether unanimity direction required – Standard of proof – Whether judge erred in explaining ‘beyond reasonable doubt’ – Appeal allowed – Retrial ordered – Jury Directions Act 2013 ss 20–21.
WORDS AND PHRASES – ‘Beyond reasonable doubt’.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | In person (6 August 2015) Ms C Boston with Mr A Imrie (28 October 2015) | Spicer Lawyers |
| For the Respondent | Mr P Kidd SC (6 August 2015) Ms D Piekusis (28 October 2015) | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
CROUCHER AJA:
Overview
Following a 10 day trial in the Supreme Court, a jury found the applicant, Kritsingh Dookheea (‘KD’)[1] guilty of the murder of Faizal Zazai. He was sentenced to 19 years’ imprisonment with a non-parole period of 15 years.[2]
[1]Abbreviations are for ease of reference only.
[2]DPP v Dookheea [2014] VSC 611 [33].
KD applied for leave to appeal against his conviction. For reasons which follow, we would allow the appeal, quash the conviction and order a retrial.
The grounds of appeal
The grounds of appeal were as follows:
Ground 1: The learned trial judge erred in directing the jury that, in order to convict the applicant, they did not have to be satisfied ‘beyond any doubt’ that he had the requisite mens rea, ‘but beyond reasonable doubt’, and that they ‘[did] not have to work out definitively what Mr Dookhea’s state of mind was’ when he inflicted the injuries that caused the deceased’s death.
Ground 2: The learned trial judge erred in directing the jury that the applicant’s state of mind could be judged solely at the time he applied pressure to or compressed the deceased’s neck on the front lawn, in circumstances where either:
(i)no reasonable jury could exclude the possibility that the deceased’s death was caused by a combination of injuries inflicted on the front lawn and in the spare room; or
(ii) the evidence was at least capable of giving rise to that reasonable possibility.[3]
Ground 3: The judge erred in failing to direct the jury that they had to be unanimous as to the act or acts causing death before they could return a verdict of guilty of murder.[4]
[3]Emphasis in original.
[4]The third ground was not formulated as such. The issue the ground raises was discussed in argument at the hearing on 28 October 2015. Counsel made oral submissions and were given leave to file written submissions on the matter. KD’s written submissions imply that the ground would take this — or a similar — form. We would grant leave to add ground 3.
We have concluded that ground 1 succeeds in part but that the grounds otherwise fail.
Procedural history
Initially, both KD and his wife, Kamna Ramjutton (’RJ’), were charged with the murder of Mr Zazai. Before their joint trial was due to commence, however, an indictment charging RJ with manslaughter was filed, to which she pleaded guilty. Her plea was accepted on the basis that she aided and abetted KD in the commission of an unlawful and dangerous act that caused Mr Zazai’s death. RJ was sentenced to eight-and-a-half years’ imprisonment with a non-parole period of six years.[5]
[5]DPP v Dookheea [2014] VSC 611, [53]. An appeal by RJ to this Court against that sentence was dismissed: Ramjutton v The Queen [2015] VSCA 309.
Upon arraignment, KD pleaded not guilty to murder but guilty to manslaughter. Since the prosecution did not accept the latter plea in satisfaction of the indictment, the matter proceeded as a trial.
The evidence at trial
A brief summary of the evidence at trial follows. A good deal of the evidence came from, or was confirmed by, what was said by KD in his two formal records of interview with police, particularly the second, which was conducted between 10:32 am and 5:45 pm on the day following the death of Mr Zazai.
Faizal Zazai owned a pizza business called ‘Pizzafellas’, for which KD had worked previously, and for which RJ still worked at the time of Mr Zazai’s death. In 2012, KD had entered a franchise agreement with Mr Zazai in relation to a Pizzafellas store at Taylors Hill. That store had failed, which left KD owing about $28,000 to Pizzafellas.
By May 2013, KD and RJ were in financial difficulty. They were behind in the rent on their home, their credit cards were overdrawn, there was no money in their accounts, and KD had not repaid funds he had borrowed from his wife’s colleague. KD felt cheated and exploited by Mr Zazai, particularly in relation to the franchise agreement regarding the Taylors Hill store, and his perception that he and his wife had been underpaid over the years they had worked for Mr Zazai.
And so it was that, on 9 May 2013, KD and his wife planned to rob Mr Zazai and to ‘teach him a lesson’. At approximately 7:45 pm, KD bought some duct tape from Kmart. Later that evening, Mr Zazai came to the home of KD and RJ. He was there to collect the takings from a Pizzafellas store managed by RJ. (KD and RJ had in fact gambled those takings away earlier that day.) KD came out of the bedroom and into the kitchen, where Mr Zazai was talking to RJ. Mr Zazai was surprised to see him. KD grabbed Mr Zazai and asked for money. A ‘commotion’ occurred, with the men pushing each other. Mr Zazai headed to the front door, yelling, ‘Help me! Help me!’
The altercation moved outside, where all three fell together onto the front lawn. KD said that he was then on top of Mr Zazai, who was lying face down, biting RJ; that Mr Zazai bit him too; that he grabbed Mr Zazai’s face from behind in his chin or throat region, and ‘could have’ pushed against his throat; and that he applied that hold for as long as Mr Zazai was trying to pin down his wife, or for as long as he continued ‘struggling’ or ‘fighting’, i.e. until he ‘collapsed’.[6]
[6]There was no suggestion on behalf of KD, either at trial or in this Court, that he was acting in defence of his wife or in self-defence, such as might give rise to a defence pursuant to ss 9AC, 9AD and/or 9AE of the Crimes Act 1958, as those provisions applied at the relevant time.
Neighbours heard noises coming from the lawn, including shouts for help. One neighbour heard a man say, ‘He tried to rape my wife.’ KD admitted that he heard a neighbour yelling that he had called the police.
After Mr Zazai ‘collapsed’, KD and his wife dragged him into the house. KD said that he did this because he knew the neighbours and the police were coming and there was ‘no hiding’. He said that it was ‘maybe a rush of adrenaline’, that he was ‘just not thinking’, and that he ‘tried to hide [Mr Zazai] and hold him’. KD agreed that a neighbour’s account of a limp body being dragged inside was the ‘absolute truth’. He also said, however, that Mr Zazai was still ‘murmuring’ or ‘buzzing’ — ‘there [were] sounds’ — at this stage, and was not struggling but was ‘agitated’. He also said he may have grabbed Mr Zazai’s mouth while dragging him inside, and that his head may have been knocked on the door stop.
KD said that, when they reached the spare room, he pushed Mr Zazai to the floor and applied pressure to his back. He was on top of Mr Zazai at this time. When asked whether Mr Zazai was unconscious before he started applying pressure, KD said, ‘Not fully conscious because … the collapse happened outside during that struggle and holding.’ He also said, ‘[Mr Zazai] was not moving, but when I heard that noise in the room … I felt like he is still here.’ When asked why he went to the trouble of applying pressure on him, he said, ‘I was scared if he, like, jumps back and what.’ He denied that, in doing so, he was trying to make sure that Mr Zazai did not survive so that he could not tell his story.
Two police officers then arrived at the front door of the house. One of them asked KD, ‘Is there anyone else in the house?’ KD replied, ‘Yes, there’s a male inside and he’s unconscious.’ The police were directed to the spare room, where they found Mr Zazai, lying face down. One of the officers rolled him onto his back and commenced cardio-pulmonary resuscitation. Mr Zazai’s eyes were ‘slightly opened and rolled back’ and his face and lips were purple. There appeared to be no signs of life. Later, paramedics determined that Mr Zazai was deceased.
After police informed KD that Mr Zazai was dead, KD was placed under arrest, told of his rights, handcuffed and taken to a police divisional van. While at the rear of the van, in answer to a police officer’s query as to what had occurred, KD said that he heard his wife call for help, he came into the kitchen and saw Mr Zazai with his hand on his wife’s breast, and then a scuffle occurred.
KD was taken to Werribee Police Station. Initially, in his first and the early part of his second formal interview with police, he maintained the allegation of sexual assault. Ultimately, however, he admitted the falsity of that allegation and that the truth was that he and his wife had planned to rob Mr Zazai and teach him a lesson.
In addition to the other matters mentioned in the summary above, KD also admitted he had told his wife that ‘if worse to worst … if [he] had to hit [Mr Zazai, he] will hit him’, but that his intention was ‘not [to] kill him … [but to] talk to him’. He said that his thinking was, ‘if something wrong happens, like, if he passes away, I will put him in the car as well and then I will drive him to … a spot that I will leave the car’.
When asked what the plan was when he bought the duct tape, KD said, ‘I wanted to teach him a lesson … but in case … something wrong happened … like if he died’ he would have had to ‘get rid of the corpse.’ When asked about this answer later in the interview, KD said that ‘the main reason for the tape was, like, to keep, like, shut his mouth and that was all’.
KD also said, ‘I’m fully aware that my actions caused his death.’ When asked, ‘Which part of your actions?’ he said, ‘During the tackling, like, it could you have, like, and he’s suffocated, I don’t know, because when I pushed him, but I — in my full sense I admit that my actions could have led to his death, but in that moment, like, I mean, whatever I’m going to say, like, it’s not in my defence, it’s just about feelings.’
Dr Emma Patterson examined KD at the police station at about 5:00 am on 10 May 2013, between the two formal police interviews. KD told her that Mr Zazai ‘bit me on the hands during the struggle’. She observed injuries to his hands and fingers consistent with bite marks.
Dr Yeliena Baber, the pathologist who conducted the autopsy on Mr Zazai’s body, detailed the injuries she observed, both externally and internally. Those injuries included a fractured hyoid bone, bruised strap muscles (on each side), scratches, abrasions and petechial haemorrhages to or in the neck; scratches, abrasions, red marks and bruising to the face; petechial haemorrhages under the eyelids; abrasions to the right ear; faint bruises to the chest; scratches, abrasions and bruising to the arms; and bruising to the shoulders and back.
In Dr Baber’s opinion, Mr Zazai died as a result of neck compression (i.e., strangulation or ‘manual asphyxia’). The injuries he had suffered were ‘typical of strangulation sort of injuries.’ Although she could not be precise about it, Dr Baber was of the opinion that it would have taken ‘minutes’, not seconds, for Mr Zazai to die in this way.
In cross-examination, defence counsel appeared to accept that the sole cause of death was compression of the neck. In final address, however, counsel drew attention to parts of Dr Baber’s evidence suggesting that death might have resulted from the combined effect of neck compression and ‘mechanical asphyxia’ (such as might result from significant weight being placed on Mr Zazai’s back). (We return to this issue later in these reasons.) Dr Baber also conceded that it was possible for a person to be rendered unconscious by neck compression but then wake up.
There was evidence that latex gloves, one of which was blood-stained, were found by police outside KD’s premises. Forensic testing showed the gloves contained DNA consistent with that of KD.
Detective Damien O’Mahoney gave evidence that KD had no prior convictions or previous contact with police.
KD did not give, or call, any evidence at trial.
Ground 2: Inadequate directions on the requirement that murderous intent and the acts causing death be wholly contemporaneous?
Introduction
It is convenient to deal with grounds 2 and 3 before moving to ground 1.
KD’s argument under ground 2 came down to five propositions, as follows:
1.The evidence was such that no reasonable jury could have excluded the possibility that Mr Zazai would not have died but for the combined effect of KD’s act of strangulation on the lawn and KD’s placing pressure on his back when they were in the spare room.
2.Alternatively, it was at least open to the jury to conclude that the strangulation was not a sufficient cause in itself and that it was only the combined effect of the strangulation and the pressure on the back that had led to the death.
3.If the jury were satisfied that that was the causal explanation (or could not have excluded it as a reasonable possibility) KD could not have been found guilty of murder unless they were satisfied that he had had a murderous intent at the time of each separate act.
4.The judge’s charge was likely to have led the jury to understand that they could convict KD of murder if they were satisfied that KD had the requisite intent either when he strangled Mr Zazai on the front lawn or when he applied pressure to his back in the spare room, even if they considered (or could not exclude as a reasonable possibility) that neither of those acts had been sufficient by itself to cause death.
5.Given its nature, KD’s act of putting pressure on Mr Zazai’s back when they were in the spare room was less likely to have been found to have been accompanied by murderous intent, so that if the directions were inadequate, there was an unacceptable risk that the impugned directions were material to the jury’s verdict.
The respondent’s submissions were as follows:
1.The evidence was that the cause of death was strangulation.
2.Trial counsel for KD in conducting the trial had accepted that strangulation was the cause. Counsel’s references to KD’s conduct in the spare room were directed only at showing that he did not have murderous intent at the point of strangulation outside. It was no part of the defence case to raise the possibility that the behaviour in the spare room was a cause of death.
3.There was, in any case, no evidence to support that possibility. Even if the mechanical asphyxia in the spare room was intended to ‘finish him off’, it was causally irrelevant since Mr Zazai was already dying from the strangulation.
4.Even if the evidence and the judge’s directions admitted of the possibility of a ‘mixed’ or combined cause of death, those directions sufficiently conveyed the necessity that the prosecution must establish that murderous intent coincided with whatever act or acts caused death.
In order to assess this ground, it is necessary to consider the principles underpinning these submissions, the relevant evidence, the way in which the parties conducted their cases at trial and the judge’s directions to the jury.
Principles
The principles are clear enough. In Meyers v The Queen,[7] in their joint judgment, Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ said the following.[8]
[T]he whole of the circumstances can be looked at in order to determine whether ‘the acts causing death were accompanied by the necessary specific intent’ (that is, an intent to cause really serious injury). But it would not be correct to assume that the act which caused death — there may have been only one such act — was accompanied by the intent which accompanied all the other acts that occurred in the course of the fighting. Although an intent to inflict really serious injury could reasonably be inferred from the totality of the injuries inflicted on Tracey McNamara, it does not follow that the appellant had that intent at the time when he did the particular act which resulted in her death.
An accused who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide.[9] If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.
[7]Meyers v The Queen (1997) 147 ALR 440.
[8]Ibid 441–442.
[9]Citing Ryan v The Queen (1967) 121 CLR 205, 217–218; and Royall v The Queen (1991) 172 CLR 378, 393, 401, 414, 421 and 453.
In that case, their Honours were considering a complaint that it was not open on the evidence to find that the act causing death was accompanied by the requisite intent. But these statements of principle mean that, in a case where the jury are satisfied that at least one of multiple acts by an accused has caused death but are unable to exclude the reasonable possibility that two or more of those acts in combination caused death, they cannot convict of murder unless they are satisfied that all such acts were accompanied by murderous intent.[10]
[10]See also, eg, R v Hughes (Unreported, Court of Criminal Appeal, Crockett, McGarvie and Beach JJ, 20 March 1990), 13–14; DPP v Zheng [2013] VSCA 304 [17]–[26] (Priest JA) and [43]–[44] (Maxwell P); and R v Zheng [2013] VSC 559 [28]–[33] (Croucher J).
The prosecution’s principal case on causation at trial
The prosecution’s principal case, as revealed by the prosecutor’s final address, was that KD caused Mr Zazai’s death — and intentionally so — when he strangled him outside on the lawn.
The causation element of that principal case was supported by evidence from at least three sources. First, KD’s neighbour saw two people dragging what appeared to be ‘a body’, each person holding one hand, from the bushes across the grass and into KD’s house. She saw no movement from ‘the body’; it was ‘limp, like somebody completely passed out.’
Secondly, as indicated earlier, in his second formal police interview KD in effect admitted that, when on the front lawn, he strangled Mr Zazai until he stopped struggling or fighting, i.e., until he collapsed. He also accepted that the observation of neighbours — that ‘a body was being dragged in and a body was limp’ — was ‘the absolute truth’.
Thirdly, as also indicated earlier, Dr Baber opined that the cause of death was neck compression (i.e., strangulation or manual asphyxia).
An alternative case on causation
In her final address, however, the prosecutor also addressed the possibility that a ‘mechanical asphyxia type of picture’ may have caused or contributed to death. After referring to Dr Baber’s opinion that the injuries to Mr Zazai’s back revealed ‘pressure’ on him ‘at around the time of death and possibly after death’, counsel submitted as follows:
Again I make the argument to you one way that could have occurred consistent with maybe one truth that he did tell to the police is that when he’s dragged him down the corridor after he strangled him, and I think at one stage he tells the police that [he] wasn’t moving but he could hear some gurgling noises or something, that he’s taken him down into that spare room and completed the exercise, just to make sure he was dead. And she [i.e. Dr Baber] called that a mechanical asphyxia type of picture. So the pressure of somebody being on the back. She talked about someone being squashed essentially. That could have happened outside too. I say it didn’t. It doesn’t explain please. It doesn’t explain the fractured hyoid and the strap muscles …
Later, the prosecutor said this:
[KD] demonstrated … the pushing on his back and what I’ve said to you is, well, that might account for those injuries on the back and if it’s occurred in that room, then [Mr Zazai] is dead or dying and he’s done that to ensure he is dead.
Subsequently, the prosecutor referred to KD’s answers in the formal interview, to the effect that when KD was in the spare room, he was ‘wanting to hide [Mr Zazai] and hold him’. She asked the jury to consider whether what KD meant was ‘the pressure on the back to ensure he’s dead’.
Thus, it seems to us, the prosecutor addressed the possibility that mechanical asphyxia in the spare room contributed to Mr Zazai’s death but submitted that such behaviour was still consistent with murderous intent.
The defence case on causation in the final address
As was implied by his pleas of guilty to manslaughter and not guilty to murder, murderous intent was the only element of murder which KD disputed at trial. Defence counsel made that clear, both in the defence response to the prosecution opening and in his final address, conceding that KD’s behaviour amounted to manslaughter. Necessarily, that concession included an acceptance that KD’s actions had caused Mr Zazai’s death.
That same concession, however, did not mean that the mechanism of death — that is, which act caused death — was conceded. It was not. In his defence response, counsel said that ‘the mechanism of death, the way in which he was killed’ would require analysis. In his final address, counsel submitted as follows:
[The prosecutor] has suggested … that that man is prepared to strangle someone to death in front of witnesses, more or less. He brings him into the privacy of his own home, though, and he doesn’t strangle him. He sits on him and presses on his shoulders. Now, does that make sense to you? Is Mr Zazai dead or not? Is he unconscious and in cardiac arrest or not? We don’t know, but it’s a curious thing you might think to drag someone into your own house if you are prepared to strangle them in front of others and then do something different, if he’s still alive. Not end his life by continuing to strangle him, but sitting on him and pressing down on his shoulders in case he got back up again. There’s a lot to be made, isn’t there, of the comment that my client first makes when police arrive almost instantly: ‘He’s unconscious, he’s in there, he’s not moving’. What does he think he’s done? And you can reason back from what he thinks he’s done to what he intended to do. …
Later, counsel said this:
What do we know about the actual mechanism of death, the way in which Mr Zazai died? The timing and mechanism … is found exactly in what he says, in his record of interview to the Homicide Squad when he’s asked how did he die. … A hyoid bone or its break is not the cause of death. … It’s just a symptom. It’s an indicia, it’s a sign of the way in which Mr Zazai died, but it’s not the reason he died. The reason he died was compression to the neck, but more than that, it’s mechanical asphyxia, not manual asphyxia, that is, someone being on top, someone … you see in that interview slowly trying to get onto his knees to demonstrate to the police. Is this a man used to physical activity or used to knowing his own strength or his own weight or what it might do, who has not been in this situation before? How could he know, consistent with the evidence from the pathologist, that that would hasten any injury, it would restrict his breathing so much it would constitute mechanical asphyxia, but that’s what Dr Baber tells us.
Dr Baber describes this as a mixed cause, a combined cause. It isn’t just alone from pressure to the neck.
…
[T]he uncontradicted state of the evidence is that at the time my client brought Mr Zazai back into the house he was making noise. …
Although the position is not entirely clear, it seems that counsel was here submitting that Mr Zazai was still alive at the time he was taken to the spare room and that a combination of the pressure placed on his back while there and the earlier strangulation caused death.
We agree with counsel for the respondent that defence counsel sought to rely on KD’s (asserted) behaviour in the spare room as supporting an argument that he did not have murderous intent at the time of the strangulation on the lawn. But we think counsel went further than that. In particular, counsel’s submissions raised the possibility that the true cause of Mr Zazai’s death was a combination of the strangulation and the mechanical asphyxia, neither being a sufficient cause by itself, and contended that KD had not been proved to have had a murderous intent at the time of the mechanical asphyxia.
Evidence supporting alternative on causation
This alternative causal possibility derived support from evidence from three sources. First, as indicated earlier, KD’s account to police in his second formal interview included the assertions that Mr Zazai was making noises — making KD believe that he was still alive — when he took him into the spare room before he placed his weight on his back. Further, KD’s utterance to police at the house — ‘there’s a male inside and he’s unconscious’ — suggested a belief on his part that Mr Zazai was still alive even after he had placed weight on his back.
Secondly, while the neighbour saw what appeared to be a limp body being dragged into the house, her evidence still left open the possibility that Mr Zazai was alive. Plainly, she was in no position to determine conclusively his vital signs, and she conceded that, from her vantage point, she could not see the whole body. If the person had been moving slightly, she would not have been able to tell.
Thirdly, the evidence of Dr Baber also went to these alternative cases on causation. Since this evidence is important not only to the present ground but also to ground 3, we shall set it out in some detail.
Dr Baber’s evidence
In evidence-in-chief, Dr Baber said that in some injuries she observed signs of ‘congestion’, which is obstruction of blood flow back to the heart. That obstruction can be caused by pressure to the neck or the chest. She considered that ‘there’s been pressure on this man as he’s died to give this picture’. When asked about the mechanism that might cause the injuries to the back, Dr Baber said that ‘these injuries or patterns of bleeding give the impression of a mechanical type asphyxia, so where there’s been pressure to the body which has impeded the blood flow back to the heart and breathing, so if someone’s been squashed essentially’. She said the injuries around the shoulders were similar in this respect to those on the back.
After estimating that it would have taken ‘minutes’, not seconds, to die from strangulation, Dr Baber was asked whether it is correct to say that dying is a process. Her answer was as follows:
Well, yes, that’s right because it’s such a complex interplay of — specifically with the neck; there’s blood flow, there’s oxygen airflow, there’s nerves in the neck which can also be affected by pressure. So it’s a very complex interplay of mechanisms and it’s hard to be — you can’t be specific about which one has dominated in causing death directly, it’s a mixture of all of them, but, as I said, his injuries would suggest that it’s been minutes rather than very rapid.
Dr Baber went on to say that, if the person were resisting or fighting, she would assume that the process of dying would take longer, ‘because as the pressure moves in the neck some blood will get through, some air may get through’.
In cross-examination, the following exchange occurred:
Dr Baber, as part of your briefing you were informed … that the assailant was said to have weighed up to 140 kilos; do you remember receiving that information? - - - Yes, I do.
Do you remember me asking you questions at the committal regarding the possibility of a weight of that nature being placed on someone’s back? - - - Yes.
You would describe that as a form of mechanical asphyxia? - - - Yes, that’s correct.
And that would operate independently of manual asphyxia, that is, strangulation? - - - Yes, that’s right.
When you referred in reference to a question that [the prosecutor] asked earlier to death being caused by a mixed process, is that what you meant, that those two processes are in operation here? - - - Yes, that’s correct.
So does it follow that in addition to manual compression to the deceased’s neck, the mechanical pressure to his back of a weight of up to 140 kilos would certainly not assist his breathing? - - - Yes, that’s correct. He would have been able to breathe out but not breathe in again.
Dr Baber accepted that, while a moderate amount of force through neck compression would be required to break the hyoid bone, it could also be broken with a ‘clumsy punch or grab … with a moderate degree of force … [but] not just a glancing blow’. She then confirmed her view that ‘[t]he cause of death is compression to the neck’.
Dr Baber then gave the following evidence:
It follows from the evidence you gave earlier that it is possible to have pressure applied to your neck and be rendered unconscious and wake up? - - - Yes.
It’s possible to have pressure applied to your neck for a period of time and not be rendered unconscious? - - - It’s possible. It wouldn’t be very much force if you weren’t rendered unconscious because it wouldn’t obstruct blood vessels and the airway.
In re-examination, after saying that the fact that the hyoid bone was fractured was just an indicator that there had been injury to the neck, Dr Baber was asked the following and gave the following answers:
When you are, for example, coming to your conclusion that the cause of death is neck compression, some of those indicators are what? You can tell … the jury. As well as the hyoid bone, what else? - - - It is the pattern of injury to the skin, the bruising that I described on the front of the neck in a ringing sort of pattern. That’s not a direct blow from a step, for example. … The fact that there is bruising to both the strap muscles, that it is not a single blow sort of injury, it is to both sides of the neck, and all those in conjunction with the fracture to the hyoid bone to me indicate manual compression of the neck. I would expect the injuries to be different if there had been another mechanism of injury.
And of course petechial haemorrhaging to the eyes, that also is an indicator as well, is it not? - - - Yes, it can be. Again, it just indicates obstruction of flow back to the heart. So the fact that he may have had pressure on his chest as well could have caused those [too], but typically it is seen in restriction of blood flow in the neck.
Dr Baber also explained that, while a misplaced blow may have fractured the hyoid bone, in her view the constellation of injuries was ‘much more typical of a manual compression [as the cause of the fracture]’.
The judge’s directions
Immediately following defence counsel’s final address, in the course of an objection raised by the prosecutor, the judge indicated that, as she understood the case that was being put by the defence, ‘it might be that Mr Zazai was not dead at the time he was taken inside … [b]ecause there’s been this reference [to] Dr Baber’s evidence … about the mixed cause … of death … [t]he mechanical asphyxia and the manual asphyxia’.
Subsequently, the judge informed the jury that there was no dispute that KD had caused the death of Mr Zazai. What was in issue was the ‘question of intent’.
Her Honour’s charge included the following directions of law:
The question you have to ask yourselves is ‘Has the Crown established beyond reasonable doubt that at the time Mr Dookheea committed the relevant act or acts that caused Mr Zazai’s death, he intended to kill Mr Zazai or cause him really serious injury?’ …
…
What the law is concerned with is the intention, that is Mr Dookheea’s intention, at the time the acts that caused Mr Zazai’s death were committed. The relevant time is when Mr Dookheea committed the act or acts that caused Mr Zazai’s death, that is when he applied pressure to or compressed Mr Zazai’s neck and/or when he applied pressure to his back …
…
Mr Dookheea’s intention at the time he applied force or pressure to Mr Zazai’s neck and/or to his back is something that the Crown asks you to infer. …
There were no expanded directions on causation or on the need to identify the act or acts causing death. We hasten to add that no such directions were sought by counsel at trial and no relevant exception was taken to the charge.
Her Honour went on to summarize some of the arguments in the prosecution final address in this way:
The Crown argues that Mr Dookheea probably died on the lawn. In any event, he was unconscious and dying. Mr Dookheea and Ms Ramjutton dragged him inside to hide him. Mr Zazai was, as … Mrs Tafilaj says, limp like somebody completely passed out. Mr Zazai was placed face down in the spare room and Mr Dookheea then put pressure on his shoulders, the Crown says, in order to make sure he was dead. The Crown relies on the pathologist … reporting marks on Mr Zazai’s shoulders as being the result of pressure at the time of or after death.
…
The Crown says you should conclude from the pathologist’s evidence that Mr Dookheea grabbed Mr Zazai, pinned him down by the arms and strangled him for some time. …
[After the strangulation,] Mr Dookheea’s then taken Mr Zazai to the spare room and completed the exercise to make sure he was dead. That is the Crown’s position.
…
[The prosecutor] says you should not believe his denials that he intended to kill Mr Zazai. She also says that you should not believe the description of the way in which Mr Zazai died.
The judge then summarized some of the arguments in the defence final address in this way:
[Counsel] also argues … that you should accept Mr Dookheea’s version of events as to how Mr Zazai died. …
…
[Counsel] says that you should conclude that it was unlikely that Mr Dookheea intended to kill a man on the front lawn of the house in front of the neighbours and with police on their way. …
…
As to what Mr Dookheea thought he was doing when he put pressure on Mr Zazai’s back, [counsel] says it would be curious if Mr Dookheea thought he could end Mr Zazai’s life by sitting on him and pressing down on his shoulders rather than simply continuing to strangle him. Mr Dookheea’s comment to the police, ‘He’s unconscious, he’s in there, he’s not moving’ has to be understood in this context. [Counsel] says you can reason back from what Mr Dookheea thinks he has done to what he intended to do. He thought he had done no more than render Mr Zazai unconscious. That is the defence’s case.
…
[Counsel] put it to you that Mr Dookheea’s description in his record of interview as to how Mr Zazai died … is consistent with what Dr Baber said about the timing and mechanism of death. [Counsel] says the evidence was that Mr Zazai died of compression to the neck, but there was a mixed cause involving mechanical asphyxia, that is, asphyxia caused by the weight of someone on top of him. … [Counsel] points also to the evidence of Mr Dookheea: at the time that he brought Mr Zazai back into the house Mr Zazai was making a noise. He says that none of the other evidence excludes that Mr Zazai was making a noise when he came back into the house.
The judge also separately summarized the evidence that went to the issue of causation, including aspects of KD’s second record of interview and Dr Baber’s evidence. In particular, her Honour referred to KD’s account of applying the hold around Mr Zazai’s chin or throat until he collapsed; of Mr Zazai murmuring or ‘buzzing’ when he took him inside; and of his applying pressure to Mr Zazai’s back when in the spare room.
She also referred to Dr Baber’s evidence that the cause of death was neck compression; that the injuries on the back area indicated ‘mechanical-type asphyxia’; that it would have taken minutes to die; that mechanical asphyxia (of a kind resulting from weight on the back) would operate independently of manual asphyxia (i.e. strangulation); that the two processes were in operation here; and that it was possible to have pressure applied to the neck, be rendered unconscious and then wake up.
Again, no relevant exceptions were taken to these summaries.
Analysis of evidence
In our view, the evidence — particularly the combination of Dr Baber’s evidence and KD’s account — left open at least the following possibilities with respect to causation.
The first is that KD’s act of strangling Mr Zazai on the lawn (manual asphyxia) was the sole cause of death. As we have seen, that was the prosecution’s principal case, and it was supported by Dr Baber’s clearly-expressed opinion.
A second possibility is that Mr Zazai was still alive after the behaviour on the lawn and initially when taken into the spare room. Dr Baber conceded the possibility that a person could be rendered unconscious by neck compression but then wake up. This, of course, is consistent with KD’s account. On this view, it was the combined effect of the earlier strangulation and the weight placed on Mr Zazai’s back in the spare room (mechanical asphyxia) which caused death.
As we have indicated earlier, this possibility appears to have been urged by defence counsel at trial. Further, it was embraced by the judge’s directions and was urged by counsel for KD in this Court. It was not accepted as open by counsel for the respondent, although it seems to have been entertained as a possibility by the trial prosecutor, albeit one that should be rejected by the jury or as one which could not avail KD, since it reflected an intention to make sure he was dead.
A third possibility is that death resulted from a combination of the act of strangulation while on the lawn and the weight KD may have placed on Mr Zazai while on top of him during that act of strangulation, thereby resulting in mechanical asphyxia. Neither party appears to have been urging this possibility at trial, although the judge’s directions and defence counsel’s submissions might be thought to have embraced it. Counsel for KD did not advance that possibility in this Court, although counsel for the respondent accepted it as arguable. We shall return to this third possibility shortly.
A fourth possibility might be thought to arise out of KD’s account and Dr Baber’s acceptance of the proposition that mechanical asphyxia ‘would operate independently of manual asphyxia’. It is that death was solely caused by mechanical asphyxia, by KD putting weight on Mr Zazai’s back when in the spare room. As will be seen, if this fourth possibility were open it could have implications for the success of the complaint in ground 3, to which we shall come shortly.
Neither party advanced this fourth possibility at trial or in this Court. And, in our view, it was simply not open on the evidence. Dr Baber’s concession — that mechanical asphyxia would operate independently of manual asphyxia — was made simply by way of explanation that those two forms of asphyxia were independent mechanisms. It was not a concession that mechanical asphyxia could have been the sole cause of death. The parties at trial and in this Court — correctly, in our view — proceeded on the basis that death was caused either by strangulation alone or by the combined effect of strangulation and mechanical asphyxia.
Were the directions adequate?
For practical purposes, only the first two possibilities are relevant to the issue raised by this ground. That is:
(a) the sole cause of death was the strangulation; or
(b) the strangulation was not a sufficient cause of death by itself, and death had only resulted because of the combined effect of the strangulation and the mechanical asphyxiation.
In our view, the evidence overwhelmingly favoured the first possibility. Most importantly, Dr Baber’s opinion — reiterated several times in her evidence — was that neck compression was the cause of death. But, as we have explained, the second possibility — the ‘combined effect’ hypothesis — was squarely raised for the jury’s consideration and was supported by parts of Dr Baber’s evidence.
As counsel for KD accepted, the judge correctly directed the jury that his intent was to be judged at the time he committed the fatal act(s). Her Honour said that KD must be shown to have had murderous intent ‘at the time [he] committed the relevant act or acts that caused Mr Zazai’s death’.
According to the appeal submission, however, the directions were inadequate in four respects, as follows:
(c) First, the jury were not in terms instructed that, if they came to the view that both acts did combine, or might have combined, to cause death, they must be satisfied that murderous intent accompanied both acts.
(d) Secondly, there was an unacceptable risk that the words ‘or’ and ‘and/or’ in the following directions might have been read disjunctively by the jury, leading them to understand that murderous intent in respect of either relevant act would suffice:
(i)‘when he applied pressure to or compressed Mr Zazai’s neck and/or when he applied pressure to his back’;
(ii)‘at the time he applied force or pressure to Mr Zazai’s neck and/or to his back’;
(iii)‘[t]he defence says that there is no evidence to satisfy you … that Mr Dookheea intended to end the life of Mr Zazai there and then, that is, on the front lawn or the spare bedroom, or to cause him really serious injury’.
(e) Thirdly, the error was compounded by the jury being provided with a transcript of her Honour’s charge.
(f) Fourthly, the handout given to the jury during the charge only heightened the ambiguity, identifying the third element as ‘when Mr Dookheea committed the relevant act(s) he intended to kill or cause really serious injury to Mr Fazai’, without defining ‘the relevant act(s)’ or making clear that the mens rea had to coincide with each and every part of the actus reus.
We are not persuaded by this submission. We accept that it would have been preferable for her Honour to have directed the jury, in terms, of the necessity of identifying the act or acts causing death and that murderous intent must be proved to have accompanied each such act. Moreover, the words ‘or’ and ‘and/or’ might have been best omitted. But we consider that the directions sufficiently conveyed the requirement of contemporaneity. There are several reasons for this conclusion.
First, as already noted, the impugned directions were preceded by a direction to the effect that KD must be shown to have had murderous intent ‘at the time [he] committed the relevant act or acts that caused Mr Zazai’s death’. That direction sufficiently conveyed the requirement that, if the cause of death was the combined effect of the strangulation and the mechanical asphyxiation, each of those acts must be accompanied by murderous intent. In those circumstances, the impugned directions would have been understood by the jury to mean that, if they accepted the ‘combined effect’ hypothesis, murderous intent must be found to have accompanied both the strangulation and the squashing in spare room.
Secondly, trial counsel took no exception to her Honour’s directions. While a misdirection or inadequate direction on an element that is in dispute at trial may be fatal to a conviction, it is always necessary to have regard to the contemporaneous reaction of trial counsel in assessing the likely impact of the impugned direction on the jury. Given that counsel had specifically pursued the ‘combined effect’ hypothesis in final address, he would have been particularly concerned to ensure that the jury understood that, if persuaded that that was how death had resulted, they would have to acquit KD unless satisfied about murderous intent both at the point of strangulation and at the point of KD sitting on Mr Zazai in the spare room. In those circumstances, we think it very significant that no exception was taken on this score.
Accordingly, we reject this ground of appeal.
Ground 3: Was a unanimity direction required?
As noted earlier, counsel for KD sought leave to add this ground of appeal of appeal following the debate in argument over the possibilities as to the cause of death. The contention now advanced is that, because the ‘combined effect’ hypothesis was open on the evidence, the judge should have directed the jury that they had to be unanimous as to the act or acts which caused death.
In our view, this ground must be rejected. It follows from our analysis that it was open to the jury to be satisfied beyond reasonable doubt that the act of strangulation on the lawn was the sole cause of Mr Zazai’s death. Given how strongly the expert evidence favoured that conclusion, it may safely be assumed that many of the jurors joined in the guilty verdict on that basis. But the availability of the ‘combined effect’ hypothesis means that, in theory at least, one or more jurors might have concluded that the mechanical asphyxia in the spare room was also a contributing cause.
Nothing about that circumstance necessitated a unanimity direction, in our view. Put simply, the jurors must have been unanimous that the death resulted — in whole or in part — from the strangulation. The position might have been quite different had the evidence supported what we described as the fourth possibility. On that view, some jurors might have come to the conclusion that it was the strangulation alone which had caused the death, while others might have concluded that it was the mechanical asphyxiation in the spare room which alone had caused the death. Had that possibility been open, then for reasons similar to those given by Maxwell P in R v Klamo,[11] a unanimity direction would probably have been necessary.
[11](2008) 18 VR 644, 661–2.
On the evidence at this trial, however, all of the jurors must have been satisfied beyond reasonable doubt that KD’s act of strangulation was the cause of death or, at least, was a contributory cause without which death would not have resulted. The fact that some jurors might have concluded that there was an additional causal factor at work does not affect the position, given our view that the directions on the mental element were sufficient.
Ground 1: Direction on ‘beyond reasonable doubt’
Complaint is made about the following passage from the judge’s charge (emphasis added):
The question you have to ask yourselves is ‘has the Crown established beyond reasonable doubt that at the time Mr Dookheea committed the relevant act or acts that caused Mr Zazai’s death, he intended to kill Mr Zazai or cause him really serious injury?’ As a corollary you might ask, ‘do I hold a reasonable doubt that at the time he committed the relevant act or acts that caused Mr Zazai's death, Mr Dookheea intended to kill Mr Zazai or cause him really serious injury?’ In other words, you do not have to work out definitively what Mr Dookheea’s state of mind was when he caused the injuries that killed Mr Zazai. You have to consider whether the Crown has satisfied you that Mr Dookheea had the intention that is required. And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt.
The submission for KD was that the judge fell into error by making the final statement in this passage, since:
·the common law does not permit (except in very limited circumstances, not here applicable) any explanation of the phrase ‘beyond reasonable doubt’;[12]
·the jury not having asked any question about the meaning of the phrase, the power conferred on a trial judge by s 20 of the Jury Directions Act 2013[13] to give an explanation of its meaning had not been enlivened; and
·the direction would have left the jury with the erroneous understanding that they could hold some doubts and still convict KD.[14]
[12]Green v The Queen (1971) 126 CLR 28, 33 (‘Green’).
[13]See now Jury Directions Act 2015 ss 61–64.
[14]R v Compton (2013) 237 A Crim R 177, 186 [30] (‘Compton’).
The submission for the respondent accepted that the power under the Jury Directions Act was not enlivened, but maintained that its enactment gave a judge ‘greater scope to explain the phrase’. Moreover, although the terms of the direction ‘were unfortunate’, it was ‘strictly speaking not wrong as a matter of logic’. Finally, the respondent pointed out, defence counsel had not taken any exception.
We have concluded that her Honour did fall into error when she spoke of the Crown having to satisfy the jury ‘not beyond any doubt but beyond reasonable doubt’. The standard of proof being fundamental to a fair trial, the failure to take exception could not stand in the way of the ground succeeding. It was on that basis that we concluded that the appeal must succeed.
The position at common law was clearly explained by the South Australian Court of Criminal Appeal in Compton. The respective judgments of Kourakis CJ and Peek J analyse the relevant authorities in comprehensive and illuminating terms, which it is unnecessary for us to repeat. The short point, as highlighted in the applicant’s written case, is that a doubt held by a jury is, by definition, a reasonable doubt. As the High Court said in Green, ‘a reasonable doubt is a doubt which a particular jury entertain in the circumstances‘.[15] It is an error, therefore, to suggest to jurors that they may entertain a doubt which is not a ‘reasonable’ doubt and on that basis proceed to convict the accused.
[15](1971) 126 CLR 28, 32–3.
In due course, consideration should be given to removing the precondition to the power of explanation in the Jury Directions Act. It is not clear to us why, as a matter of policy, the power of a judge to assist a jury in this respect should depend for its exercise upon the jury first having asked a question.
Finally, and for completeness, we draw attention to her Honour’s direction to the jury that they did not ‘have to work out definitively’ what KD’s state of mind was when he caused the fatal injuries. With great respect, we think that such a direction should be avoided, as it carries with it the risk of diluting the standard of proof.
Orders
We considered whether the setting aside of the conviction should result in an order for a retrial[16] or the substitution of a conviction for manslaughter and the imposition of sentence for that offence.[17] On the evidence presented at trial, while a jury might have entertained a doubt about KD’s guilt of murder, there was sufficient evidence for a verdict of guilty to be returned. There being no other discretionary or other consideration suggesting that a retrial should not be had, we concluded that the appropriate order was that there be a retrial.
[16]See s 277(1)(a) of the Criminal Procedure Act2009 (Vic).
[17]See s 277(1)(c) of the Criminal Procedure Act 2009 (Vic).
Pro bono assistance
Before leaving this matter, we wish to record the Court’s gratitude to those acting for KD on a pro bono basis.
While KD had legal representation at trial, he initially appeared in this Court unrepresented, because he had no funds to engage lawyers and had been refused assistance by Victoria Legal Aid. He had prepared his own written case and related documents. At the hearing in August 2015, the Court indicated to KD that there might be merit in his application but that it would be preferable if lawyers were engaged to agitate the matter, and that they might be prepared to do so on a pro bono basis. The parties were content to have the matter adjourned so that that possibility might be investigated by the Registrar of the Court of Appeal.
In the event, KD engaged Spicer Lawyers, who instructed Ms Boston and Mr Imrie to appear, all of whom acted pro bono. Counsel filed a revised written case and related documents on behalf of KD, and the respondent filed a revised response.
At the return of the hearing in October 2015, KD was given leave to abandon his previous grounds of appeal and to agitate two new grounds instead (grounds 1 and 2). As the hearing developed, leave was given to KD to agitate what became ground 3, and both parties subsequently filed written submissions on that ground.
We wish to commend Ms Spicer’s firm, Ms Boston and Mr Imrie for providing their services to KD, and thereby assisting this Court, on a pro bono basis. It is in the finest traditions of both branches of the legal profession in this State that such assistance has been provided.
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