Hegarty v The Queen
[2012] VSCA 252
•11 October 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0139 | |
| RACHEL HEGARTY | Appellant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | BUCHANAN and TATE JJA and T FORREST AJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 13 September 2012 | |
DATE OF JUDGMENT/ORDER: | 11 October 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 252 | |
JUDGMENT APPEALED FROM: | [2011] VSC 262 (Whelan J) | |
---
CRIMINAL LAW – Murder – Probative value of evidence not outweighed by prejudicial effect – Reckless murder properly left to jury – Verdict not unsafe or unsatisfactory.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Victoria Legal Aid |
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
After a trial in the Supreme Court the appellant was convicted on a charge of murdering Walter Hughes, an elderly, frail man, whom she assaulted in the street.
The assault took place in the afternoon of 29 August 2009. In the morning the appellant took a prescribed dose of methadone and during the day consumed a large quantity of alcohol with friends. A breathalyser test was performed on the appellant that night and expert testimony was given suggesting that the appellant’s blood alcohol level when the assault occurred would have been approximately .19 to .22. In addition, the appellant may well have injected heroin shortly prior to the assault.
The appellant, apparently heavily intoxicated, was observed acting aggressively and irrationally towards persons around her. The appellant did not know Mr Hughes and there appeared to be no motive for her attack upon him. Witnesses describe the appellant punching Mr Hughes and one witness said she kicked Mr Hughes when he was lying on the ground. Mr Hughes made no effort to retaliate. One witness said that the punching and kicking were performed with ‘a fair bit of force’. Another witness described the attack as ‘vicious’.
Mr Hughes was taken by ambulance to a hospital where he died at about 11 o’clock that night.
An autopsy conducted on Mr Hughes revealed bruising of his cheek, right upper lip and an abrasion to the back of his head, bruising on his left hand, bruising and a skin tear on his right elbow, abrasions to his right knee and bruising on his lower right leg. Internal examination revealed bruising to the back of Mr Hughes’ head, his temple, the left side of his face under his jaw, his chest wall and his right bicep.
The injury which caused Mr Hughes’ death was a fracture of his spine at the point where the neck joins the chest. Medical evidence established that the pre-existing condition of Mr Hughes’ spine was such that a blow delivered with even minor force could have caused his death. The most likely cause of the injury was a blow to the front of the head, but any force which caused Mr Hughes’ head to project backwards could have produced the injury.
The appellant sought leave to appeal against her conviction on three grounds. They were:
1.The learned trial judge erred in allowing evidence to be led of the ambulance officer’s note regarding Mr Hughes as saying that after he landed on the ground he was hit to the head.
2.The learned trial judge erred in permitting the Crown to seek the conviction of the applicant on the basis of reckless murder.
3.The verdict of the jury was unsafe and unsatisfactory.
A single judge of the Court granted leave to appeal on ground 2 but refused leave to appeal on grounds 1 and 3. The appellant has elected to renew the application for leave to appeal on grounds 1 and 3. The judge refused leave to appeal against sentence. The application for leave to appeal against sentence has not been renewed.
The ambulance officer, Bruce Harrison, arrived at the scene of the assault. He said that Mr Hughes was lucid. Mr Hughes gave Mr Harrison an account of what had happened. Mr Harrison said that he did not have an independent recollection of what the deceased said. He was permitted to read a note which he had made. The note recorded:
Walter was alert and oriented to time, place and person. He had a full recollection of the incident, recalling being punched, falling to the ground, landing on the ground and being hit in the back of the head.
Counsel for the appellant submitted that the note should not have been admitted in evidence, relying upon s 137 of the Evidence Act 2008, which provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
It was submitted that the statement ‘being hit in the back of the head’ was ambiguous, but might have led the jury to speculate that the appellant kicked the deceased in the head while he was on the ground and that may have been significant in the jury’s consideration of the issue of intent.
In his charge to the jury, the trial judge urged the jury to be cautious in acting upon the note. He said that the evidence was hearsay, that defence counsel had not had the opportunity to cross-examine Mr Hughes and that Mr Hughes was suffering from concussion when the statement was allegedly made to Mr Harrison. Counsel for the appellant was able to point out to the jury the limitations of the evidence.
In the light of the fact that the fatal injury was probably a blow to the front of the deceased’s head, the evidence of a bystander of the appellant kicking the deceased while he was on the ground and the fact that the limitations of the statement in the note were readily apparent, I do not think it has been demonstrated that the trial judge erred in deciding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant.
Pursuant to ground 2, counsel for the appellant submitted that there was no factual basis upon which the jury could be satisfied that the appellant foresaw the probability of really serious injury as distinct from injury or even serious injury.
I disagree. Mr Hughes was a slightly built, 89 year old man whose infirmity was readily apparent to those who saw him. He was described as ‘a frail old man’, ‘an elderly gentleman’ and ‘very elderly, very frail’. The appellant had ample opportunity to make the same observations and appeared from statements she made at the time to be aware of her surroundings. The appellant was young with a stocky build. The assault she unleashed upon Mr Hughes was sustained. The victim was punched and kicked many times. The assault continued after the victim had fallen to the ground and only finished when the appellant was physically restrained. In my opinion, the evidence did provide a factual basis for a finding of reckless murder.
Whether an accused had a reckless state of mind generally depends upon inference rather than direct observation. A potential danger is that a jury may think that the accused was reckless because that is what they think a reasonable man’s reaction would be in the circumstances facing the accused.[1] In the present case the trial judge firmly warned the jury more than once against reasoning in that fashion. He made it clear that it was the appellant’s state of mind that was critical: she must have known that really serious injury was a probable consequence of her actions. There is no reason to suppose that the jury did not obey the judge’s instructions.
[1]Pemble v R (1971) 124 CLR 107, 120 (Barwick CJ).
Counsel for the appellant submitted that the verdict was unsafe and unsatisfactory in that the jury could not be satisfied that the appellant acted with the requisite intent to constitute murder.
The prosecutor did not contend that the appellant acted with an intent to kill, but rather with the intention of causing really serious injury or with foresight of the probability of really serious injury.
Counsel for the appellant put at the forefront of his submissions the evidence of the appellant’s intoxication, the uncertainty as to what particular act caused the death and those aspects of the evidence which tended to minimise the severity of the appellant’s attack upon the deceased.
There was evidence consistent with the appellant being heavily intoxicated. She was described as staggering from one side of the footpath to the other, bumping into fences, distressed, slurring her words, either very drunk or very drug affected, ‘looking very pissed’, almost incoherent, heavily intoxicated and too intoxicated to sign a police document.
On the other hand, there was evidence that the appellant was aware of her surroundings and able to function and make decisions. She got change at a milk bar in order to make a phone call. She made a telephone call to an employee of the Department of Human Services to cancel arrangements for access to her child and invented a false story as to why that was being done. After the assault the appellant was able to persuade one of the witnesses to let her go, threatening him with legal proceedings. She gave a false name, false birth date, false address and false mobile number to the police. She made phone calls while in the divisional van after she had been arrested. At the police station she gave another false name and in the cells she telephoned her mother and was able to tell her that she was at the Camberwell police station. The appellant had sufficient presence of mind to hide a mobile phone so that it was not found in an initial search.
I consider that the question whether the appellant’s level of intoxication precluded the formation of the requisite intent was a matter for the jury. The evidence did not mount so high as to compel the conclusion that no jury acting reasonably could have been satisfied that mens rea existed.
The circumstances attending the death of Mr Hughes were unusual in that the spinal fracture that caused his death could have occurred as a result of minimal force. Accordingly, so it was said, a finding beyond reasonable doubt could not be made that the requisite intention accompanied the act that caused death.
The Crown case was that the punches and kicks by the appellant comprised a single assault. The evidence established that the acts constituting the assault were so closely related that it was appropriate to draw the inference that the appellant’s intention remained the same from beginning to end, so that the impossibility of distinguishing the action that caused death was not material.
There were two eyewitnesses to the assault. Counsel for the appellant relied upon the evidence of the witness who said that her viewing of the assault lasted ‘maybe three, four seconds’ and she then ‘just hid and ran and got the kids …’. The witness described the assault as ‘repeated punching’ and said three times that it was ‘vicious’. She did not say that the assault lasted three or four seconds, only that she watched for that time.
The other eyewitness described a longer assault that began with punching and progressed to ‘very strong kicks’ when the deceased was on the ground. Counsel for the appellant sought to neutralise the evidence of this witness by pointing out that he had deliberately lied in a statement to the police and in his evidence at the committal hearing. The witness lied about the movement of his car, where he parked it and its type. He arranged for someone at work to change the
vehicle for another before the police arrived. He did this because the car was unregistered. It was open to the jury to accept that the witness was truthful in recounting events in which he was not involved and as to which he had no motive to lie. The lies did not, in my view, necessarily render the witnesses’ evidence as to the assault unreliable.
In addition, there was evidence of a number of injuries to the deceased, blood on the appellant’s shoes and swollen knuckles on the appellant’s right hand. While the pathologist did say that the injuries were consistent with the application of mild to moderate force, he did not exclude the possibility that greater force was applied.
In short, there was evidence that supported the conclusion that the appellant’s assault bespoke an intention to cause real serious injury or at least knowledge of the probability of really serious injury.
In my opinion, the appellant has not established that no reasonable jury could have returned the verdict in the state of the evidence at the trial.
For the foregoing reasons, I am of the opinion that none of the grounds have been established.
TATE JA:
I agree with Buchanan JA.
T FORREST AJA:
I also agree with Buchanan JA.
- - -
0