Hill v The State of Western Australia - [2015] WASCA 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HILL -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 17

CORAM: McLURE P
MAZZA JA
HALL J

HEARD: 20 AUGUST 2014

DELIVERED : 22 JANUARY 2015

FILE NO/S: CACR 66 of 2014

BETWEEN: MARK CHARLES HILL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CORBOY J
File No  :INS 35 of 2013

Catchwords:

Criminal law - Application for leave to appeal against conviction - Manslaughter - Accident - Whether directions of trial judge were adequate

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

Appellant: Earnshaw & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Alford v Magee (1952) 85 CLR 437
Azaddin v The State of Western Australia [1999] WASCA 265; (1999) 109 A Crim R 474
Barca v The Queen (1975) 133 CLR 82
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Domican v The Queen (1992) 173 CLR 555
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Kaporonovski v The Queen (1973) 133 CLR 209
Munmurrie v The State of Western Australia [2007] WASCA 184
Pemble v The Queen (1971) 124 CLR 107
Pezzino v The State of Western Australia [2006] WASCA 131
R v Taiters, ex parte Attorney‑General [1997] 1 Qd R 333
R v Van den Bemd [1994] HCA 56; (1994) 179 CLR 137
Raux v The State of Western Australia [2012] WASCA 1
Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527

McLURE P: I agree with Hall J.
MAZZA JA: I agree with Hall J.
HALL J: This is an application for leave to appeal against conviction.
On 28 November 2013 the appellant was acquitted of murder but convicted of the alternative offence of unlawfully killing Roma Joyce Pollitt. He now seeks leave to appeal against that conviction on a single ground. The ground is that the trial judge failed to adequately sum up to the jury matters relevant to the defence of accident.

The prosecution case

The appellant and the deceased had known each other for approximately 25 years prior to her death. At one stage in 2009 they had an intimate relationship. Their relationship broke down and there was a dispute regarding money. The appellant became abusive and threatening towards the deceased. In July 2010 the deceased obtained a restraining order against the appellant. That order continued in force until 23 July 2012. For some time the appellant and deceased did not see each other.
In 2011 the deceased suffered a brain infection. This resulted in her undergoing surgery. She fully recovered from the surgery but there were residual side effects, including some cognitive impairment and short term memory loss. There was also a mild risk of seizures, which was minimised by anti‑convulsant medication. When assessed in May 2012 the deceased was found to have some left‑sided weakness, but that was not an acute problem and there were no issues with mobility or balance. She had some problems with short‑term memory and irritability. However, she was cleared to drive a car.
Some time later the relationship between the deceased and the appellant improved, to the extent that in June 2012 the appellant moved to live in a bus on land close to the deceased's Bullsbrook property. They continued to live separately; the appellant in his bus and the deceased in her house some distance away. However, they saw each other often and, on occasion, the deceased would sleep with the appellant in his bus. The prosecution case was that the appellant was not truthful as to exactly when he commenced again seeing the deceased and that he claimed it was only after the restraining order expired. This, and other suggested lies, was said to undermine the credibility of the appellant.

In the days immediately preceding her death the deceased and the appellant spent a great deal of time together. During this time the appellant was observed to become angry at the deceased regarding her inability to complete what he perceived to be simple tasks. He was observed to throw an object at her and to say that sometimes he felt like killing her. On 30 July 2012 the deceased and the appellant went quad biking together in Lancelin. The next day they carried out some errands together in Midland.
On the evening of 31 July 2012 the appellant made several unanswered telephone calls to the deceased. He then telephoned a friend in Esperance and said that he was intending to break away from the deceased. The appellant made several more attempts to contact the deceased by telephone and left voice messages. These messages were unable to be recovered because the appellant subsequently destroyed the deceased's mobile telephone. He also called his brother and left messages saying that he was intending to go 'live in the wind'.
At around 10.00 pm on 31 July 2012 a neighbour heard loud music coming from the deceased's home. Just after midnight the same neighbour was woken by bright lights and the sound of a car. He saw a car towing a trailer in the deceased's driveway. The car parked and a person got out and walked towards the deceased's house. Shortly afterwards the neighbour heard the deceased shout 'fuck off' in a very loud voice. About 10 to 20 minutes later the neighbour heard the car start up and drive away towards a dam at the rear of the property where the quad bike had been stored. The car and trailer returned to the house shortly afterwards and the same person went into the house for a further 15 minutes. The car was then driven off towing the trailer. The appellant attended at a roadhouse in Corrigin at about lunchtime the following day. He was driving a car towing a trailer carrying a quad bike.
On the evening of 1 August 2012 the neighbour went to check on the deceased. The lights and TV were turned on. The deceased's wallet and bag were open on the floor and the contents left in a pile. Some pet biscuits were scattered across the floor and two bar stools were on their sides. The deceased was found lying face down in her dining room. An ambulance was called but it was clear that she had died some time earlier. On examination she was found to have sustained a number of blunt force soft tissue injuries to her face. Linear blanching on the left side of the face was consistent with a hand print. There was a boggy swelling to the rear of her scalp. There was internal bruising of the neck. There was also bruising and abrasions on the arms and back and a fractured rib. Evidence indicated a concussive brain injury that could have caused the deceased to lose consciousness.
Whilst the cause of death could not be medically ascertained, the prosecution case was that the deceased had been knocked unconscious, was unable to protect her airway and died of asphyxia.
The appellant was arrested in Esperance at 7.30 am on 2 August 2012. He told police that he knew nothing of the deceased's death and that he had last seen her at about 5.30 pm on 31 July 2012. He said that he and another man, who he had met that day, left Bullsbrook between 9.00 pm and 10.00 pm on 31 July 2012 and arrived in Esperance in the late afternoon of 1 August 2012. He denied going to the deceased's house on the evening of 31 July 2012. However when challenged in regard to the quad bike having been seen at the deceased's house that day he admitted to having gone there to collect the bike and that he spoke to the deceased briefly to tell her that he was leaving. He maintained that he did not go into the house.
Blood was found on the appellant's clothes at the time of his arrest. When tested it was found to be likely to be that of the deceased. Blood found on the deceased and in the house was also tested and found to be likely to be that of the appellant. Pieces of glass from a broken jug were found in the room where the deceased's body was located. The deceased's mobile telephone was also found in the fire place. The destruction of the telephone made it impossible to recover voice messages, including those left by the appellant.
The prosecution case was that the appellant had gone to the home of the deceased on the evening of 31 July 2012, that they had argued and that the appellant had assaulted the deceased. The assault had included striking the deceased to the head and face and compressing her neck. He had then left her wounded and unconscious on the floor. Whilst the precise cause of death could not be determined the prosecution case was that it could be inferred that the appellant's act in assaulting the deceased had made a significant contribution to her death.

Defence case

The appellant gave evidence in his defence. With some variation as to the timing of when he left Bullsbrook and spoke to the deceased, he maintained that he did not go into her house or assault her.
The appellant also called Professor Johan Duflou. Professor Duflou is a forensic pathologist and his evidence will be dealt with in more detail later. The purpose in calling his evidence was to cast doubt on whether the injuries inflicted on the deceased had been the cause of her death. Professor Duflou's evidence was that none of the injuries, either individually or together, were of such a nature as to be likely to cause death.
A number of the prosecution expert witnesses were also cross‑examined as to the possibility that the deceased had suffered a seizure and that this may have caused her death. The suggestion was that the deceased had an increased susceptibility to a seizure as a consequence of her brain infection in 2011. The objective was clearly to provide for the eventuality that the jury rejected the appellant's evidence and concluded that he had assaulted the deceased. If there was reasonable doubt that the injuries had caused the death of the deceased the appellant could not be convicted.

The issue of accident

Following Professor Duflou's evidence the trial judge queried defence counsel as to whether the issue raised by that evidence was simply one of causation or whether the defence was suggesting that accident was an issue. This was a reference to s 23B of the Criminal Code (WA) which relevantly provides that a person is not criminally responsible for an event that occurs by accident. An event occurs by accident if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: Kaporonovski v The Queen (1973) 133 CLR 209, 231 (Gibbs J).
In response defence counsel said that there were two possibilities. The first was that the deceased had a lower threshold for seizures given her earlier brain injury. The suggestion was that the assault on the deceased may have resulted in a seizure which caused her death, but that this was not foreseeable. The second possibility was that on Professor Duflou's evidence none of the injuries were of a nature as to be likely to cause death. The implication was that if this evidence was accepted it was open to conclude that the person who inflicted the injuries could not have foreseen that death would result (ts 1420 ‑ 1422).
The prosecution accepted that accident had to be left to the jury on the first basis. However, the prosecutor suggested that Professor Duflou's evidence dealt more with causation than an event occurring by accident. The prosecutor accepted that if it was not possible to prove beyond reasonable doubt that the appellant had caused the death of the deceased then the State would not have proved its case. But that would be due to a failure to prove causation, not due to a failure to exclude accident.
The trial judge then questioned defence counsel as to how a doubt as to the cause of death would require the jury to consider accident. Defence counsel responded by referring to the previous head trauma and brain damage in an apparent attempt to suggest that there could be some other unknown cause of death. The trial judge noted that any requirement to consider accident must arise from the evidence and not from speculation as to what other causes of death there may be.
The matter was raised again on the following day of the trial. In regard to this issue defence counsel then said:
Your Honour, having considered causation again, I'm now of the view that it is causation.
...
Having gone through various authorities and racked my brain and tried to put the pieces in, I've come to the conclusion that causation is the issue (ts 1483).
The trial judge then said that on his reading of the authorities the fact that the cause of death is not explained by medical evidence does not provide an evidentiary foundation for raising accident. Defence counsel said that he accepted that (ts 1483 ‑ 1484). The outcome was that evidence regarding the nature of the injuries was accepted as being relevant only to the question of causation and that the issue of accident only arose to the extent that there was a possibility that the deceased had died as a result of an unforeseeable seizure. Defence counsel gave a closing address consistent with this position (ts 1644 ‑ 1645). Though there was a brief mention of whether it was reasonably foreseeable that death would result from the injuries (ts 1657), this did not necessarily refer to anything other than the possibility of a seizure.

The evidence

For present purposes it is only necessary to canvass the evidence that is relevant to the ground of appeal.

Dr Stephen Honeybul

Dr Honeybul is a neurosurgeon who treated the deceased in 2011 and 2012. The deceased presented on 27 June 2011 with a headache and some confusion. A CT scan showed early infection of the brain. This was initially treated with antibiotics and draining of some fluid. This treatment was unsuccessful and the infection progressed rapidly. The deceased became confused and drowsy and her consciousness deteriorated. At that stage it was a life threatening condition and surgery became necessary.
In early July 2011 the deceased underwent a craniotomy. This involved opening up the whole cranium and draining it of infected fluid. This process resulted in permanent removal of a part of the skull and replacing it some months later with a titanium plate.
Following the surgery the deceased made a good recovery over several weeks. By 19 July 2011 she was able to walk unaided but still suffered some confusion. Initially she had to wear a helmet, until the titanium plate was inserted on 30 January 2012. The plate was not inserted until it was clear that there was no residual infection. By that time Dr Honeybul described her mental functioning as 'fairly good'. She had made a full recovery, notwithstanding that a patient who had suffered such an infection would have some degree of subtle problems with, for example, memory impairment. There can also be issues with balance, but Dr Honeybul did not observe any and the deceased did not report any.
Dr Honeybul was asked whether a person who has suffered a condition of this nature was more susceptible to seizures of any kind. He said that at the time of infection seizures are a high risk but this was not so after recovery. He said '[g]enerally if you go for a couple of months afterwards and you haven't had a seizure, your risk is pretty low. It's slightly above the sort of general population but it's low at that stage' (ts 558).
Dr Honeybul saw the deceased again in about April 2012. She did not report any seizures. Blood toxicology showed that prior to her death the deceased had taken an anticonvulsant drug. Dr Honeybul said that this was standard medication following a craniotomy and whilst it was recommended that patients stopped taking it once the risk of side effects had reduced, many patients chose to go on taking it. He said that if the deceased was still taking an anticonvulsant at the time of her death her seizure risk would be low.

Dr Jodi Nicole White

Dr White is a forensic pathologist who conducted the post‑mortem examination on the deceased. She found that the deceased had suffered a number of blunt force soft tissue injuries to the face including to the eye and mouth area. The deceased's hair was matted with blood over the right side and at the back of her head. There was 'boggy swelling' of the head. There was blood coming from her nose and mouth.
Internal examination revealed, relevantly, bruising on the under surface of the scalp, bruising to the chest wall and a fractured rib, and bruising to the neck. The neck bruising was in the area of the larynx and the base of the tongue. The hyoid bone was intact. There was also more extensive bruising from the chin and along the left jawline towards the ear. Petechiae were observed above and below the neck. These are pinpoint haemorrhages caused by the bursting of small blood vessels. One possible explanation for those above the neck was sustained compression of the neck.
Dr White was unable to give a specific cause of death. She did offer a number of factors which could have contributed to death. The first of these was concussive head injury. Given the nature of the head injury it was likely that the deceased had lost consciousness and either had been left or fallen into a position where she was face down. In that position, if she was still alive, her airway would likely have been partially obstructed. Bleeding to the mouth would have further hindered the ability to breathe. If the deceased was unconscious she would have been unable to move herself and this may have resulted in positional asphyxia. The second factor was injuries to the neck. There were features externally and internally which were in keeping with neck compression, but Dr White was unable to say whether this was of a lethal nature. However bruising and swelling to the neck and throat area could also have impinged upon the deceased's ability to breathe.
Toxicology results showed no alcohol, cannabis or morphine related drugs in the blood of the deceased. There was evidence of Citalopram, an antidepressant, and Levetiracetam, an anticonvulsant. Dr White could not say whether these were likely to have had an effect on the deceased, in particular in regard to the possibility of seizure.
In cross‑examination Dr White accepted that some of the injuries were capable of being caused by stumbling against a work bench or falling to the ground. But the number and nature of the injuries was not consistent with a single fall. She also accepted that some of the injuries were of a type that could occur when a person has a seizure. However, when asked whether it was possible that the deceased had a fit, Dr White said she thought not because the injuries as a whole were not consistent with a seizure (ts 808). In particular a fit would not explain deep bruising under the jaw line.

Dr Victoria Ann Fabian

Dr Fabian is a neuro‑pathologist who conducted an examination of the deceased's brain. She noted some haemorrhaging of the dura, the membrane over the surface of the brain. This would normally be indicative of trauma to the head but Dr Fabian could not discount the possibility that it was related to the deceased's previous brain surgery. There was nothing to indicate any recent infection.
There was recent haemorrhaging in the corpus callosum and this was also a marker for head injury. A trauma in this context means some sort of physical blow, injury or wound to the brain. This injury could also be caused by an unprotected fall. This was described as a concussive injury and was likely to have resulted in a period of unconsciousness, though the duration could vary significantly. The haemorrhaging had occurred within a period of three hours prior to death. This suggested that the deceased had survived the head injuries for a period of up to three hours.

There was also haemorrhage in the connective tissue of the spinal column. This could be caused by excessive flexion or a blow to the neck. This injury was also recent and occurred in the same time frame as the head injury.
In cross‑examination Dr Fabian was asked whether a concussive injury of this type can start a seizure. She said that it would not because such an injury occurs in the white matter of the brain. Seizures occur as a result of disturbance of neurons in the grey matter. As to the possibility that brain damage from the past infection and surgery could have caused a seizure, Dr Fabian said this was possible but was best addressed by the treating clinician. Some people could have a lot of damage to the brain and never have a seizure (ts 851 ‑ 852).

Professor Johan Duflou

Professor Duflou is a forensic pathologist. He had not conducted the post‑mortem but had viewed the reports and photographs of the post‑mortem examination undertaken by Dr White.
Professor Duflou said that none of the injuries would generally be expected to cause death, either alone or in combination. He said the deceased may have had a neck compression, but this was not supported by any significant injury to the external surface of the neck or by the fact that the hyoid bone was intact. He said that the petechiae did not support a conclusion of neck compression as they were located both above and below the neck. Whilst neck compression was a possibility as a cause of death, he could not say it was a likelihood.
Professor Duflou said that if the deceased had a history of seizures and if the anti‑convulsant drug was at sub‑therapeutic levels then she could have been having seizures leading up to her death. He accepted, however, that if there was no history of seizures the use of anti‑convulsant medication did not matter. If there was such a history then a 'breakthrough' seizure could occur even if medication was used. He did not know whether this was a rare occurrence because it was not his field of expertise.
Another possible cause of death was positional asphyxia. However Professor Duflou said that there was no significant bleeding into the lungs, which would be expected if death had occurred by that mechanism.
In regards to the blunt force injuries to the body, Professor Duflou said that these were not explained by a single blow or fall. An injury to the left hand side of the face could have been caused by a slap and the injury to the mouth could have been caused by a punch or by a fall. The injuries to the face and scalp would not typically be expected to result in death. The head injury did not seem severe enough to him to have been the likely cause of death.
In conclusion Professor Duflou said:
Right. Now, just going to again the cause of death and other matters concerning that?---Yes. Well, I think it's fair to say that reading Dr White's reports and her evidence after that, there are a number of potential contributors to death in the form of blunt force injury to the head and the face and neck, potentially partial occlusion of the airway by blood and other substances - - -
Yes?--- - - - damage to the brain, causing unconsciousness; in other words, a period of concussion.
Yes?---Possibly either lethal or non-lethal neck compression and then possibly added to that there may have been a degree of positional asphyxia.
Yes?---In other words, the body is in a position which makes breathing difficult.
Yes?---Whatever position that might be. But the problem with all of that is that in fact there isn't significant bleeding into the lung fields.
Yes?---And in aspiration, and obstruction of the airway due to blood and other fluids, you see inhalation of blood and other substances into the lung tissue and that wasn't described by Dr White. There was only a small amount of bloody thin fluid in the airways, and I think her view was that it was likely purged up fluid, which is fluid seen in the deterioration of the body after death.
Yes?---So I don't think that there was evidence, in fact, for aspiration, for occlusion of the airway.
Right?---I think that there may have been those various events mentioned by Dr White, but certainly putting them as more likely than not causing death, I couldn't do that. They would become possible contributors to the death. But in terms of the actual cause of death, I just can't say.
Right. And that is the combination taken together as well?---Yes, taken together as well. I mean, the problem remains that there is only limited blunt force to the head. To argue that there was a period of unconsciousness and during that time there was obstruction of the airway, well, the problem is there's just no evidence for it. That really is the part that worries me about it. You know, you can argue about strange natural diseases which show no evidence of it either, but I don't think that's a valid approach to take in this case. There's just no evidence of it, and I worry about giving a cause of death where there's no evidence for that cause of death (ts 1393 - 1394).

Summing up

The trial judge's summing up was lengthy and detailed. It is only necessary to refer to those parts that are relevant to the ground of appeal.
His Honour told the jury that if they were satisfied beyond reasonable doubt that the appellant had committed an assault on the deceased they must then ask whether his acts in assaulting her substantially or significantly contributed to her death. In dealing with the causation issue his Honour referred in detail to the evidence of Dr White, Dr Fabian and Professor Duflou (ts 1794 ‑ 1806). There is no suggestion that this summary was in any way inadequate or erroneous.
His Honour then turned to the issue of accident. He referred to s 23B of the Criminal Code and then said:
The event for the purposes of section 23B is the death of Ms Pollitt and the State carries the onus of proving that Ms Pollitt's death was not an event that occurred [by] accident. Now, in the particular circumstances of this case, the State can prove that Ms Pollitt's death was not an accident if it satisfies you beyond doubt that either Mr Hill actually foresaw her death as a possible outcome on the State's case of him assaulting Ms Pollitt or that Ms Pollitt's [death] was a - was foreseeable by an ordinary sober person in the position of Mr Hill as a possible outcome of the assault allegedly committed by Mr Hill. And a positive - a possible outcome is an outcome which is not remote or speculative. And there is, therefore, an issue that you must decide about the foresee ability of Ms Pollitt's death from the act or acts of Mr Hill as alleged by the State - the assault to Ms Pollitt's head and neck that the State alleges that Mr Hill committed.
Now, the State does not need to prove the exact mechanism of Ms Pollitt's death, that is, to prove - sorry, the State does not need to prove the exact mechanism of Ms Pollitt's death, what it needs to prove is that her death was a possible outcome of the assault that it alleges. That is, the State does not have to prove that Mr Hill foresaw or an ordinary sober person in the position of Mr Hill would have foreseen that a possible outcome of the alleged assault was that Ms Pollitt would die as a result of a particular injury or by a specific cause. Now, each way in which the State may prove that Ms Pollitt's death was not an event that occurred by accident, requires you to draw an inference.
An inference about Mr Hill's state of mind or an inference [about] what an ordinary sober person in Mr Hill's position would consider as a possible outcome. And I again remind you, that you must only draw an inference that is adverse to Mr Hill if it is the only reasonable inference open on the facts as you have found them to be. The State says that you can infer that Mr Hill actually foresaw or that an ordinary sober person in his position would have foreseen that death was a possible outcome of the assault it alleges was committed by Mr Hill when you have regard to the following matters.
First, the injuries that Ms Pollitt sustained, the neck compression and the head trauma - the concussive head injury. Secondly, the severity and nature of the assault which the State says that you can infer from the injuries that were described by Dr White and Dr Fabian on their post‑mortem examination. And so you are required to make findings about the severity and nature of the assault and you will [have] regard to the evidence of not just Dr White and Dr Fabian in that exercise, of course, but also the evidence of Professor Duflou.
And then the State says further that Mr Hill knew that Ms Pollitt was 60 years old, he knew her history including something of her medical history, he knew that she had suffered a brain infection and had had surgery, he knew what Ms Forrester described in her closing as her frailties including things like that she may have had some residual disabilities from her surgery. And as Ms Forrester put it - or sorry, Ms Forrester put it that in her submission:
'Mr Hill would be in an even better position than a stranger to know the possible outcome of his actions.'
And then she went on to say:
'But the State would say that anyone would know that assaulting a 60 year old woman in such a manner as the State alleges Ms Pollitt was assaulted, would have death as a possible outcome - that is, an assault to the head and neck of Ms Pollitt.'
Mr Fitzpatrick in his closing submitted to you a possible scenario principally on the evidence given by Dr Honeybul, but also by Professor Duflou. It was that Ms Pollitt could have had a seizure and that this was not a possible outcome that is, death by seizure - that Mr Hill, if he was the assailant, actually foresaw or that an ordinary sober person in his position could have foreseen as a possible outcome of the assault alleged by the State. Now, I need to take you briefly to the evidence given by Mr - Dr Honeybul which was the basis for Mr Fitzpatrick's submission (ts 1819 ‑ 1821). (emphasis added)
His Honour then referred in detail to the evidence of Dr Honeybul and to the examination and cross‑examination of Professor Duflou as to the possibility of seizure. His Honour then said:
Now, that's the evidence that Mr Fitzpatrick was referring to when he spoke about in his closing address to the possibility of breakthrough seizures. Now, the scenario put by Mr Fitzpatrick assumed that a seizure was a possible cause of Ms Pollitt's death. I have already referred you to what Dr Fabian said about the possibility of a seizure being the cause of Ms Pollitt's death. It will be a matter for you as to whether you accept her opinion.
Now, the State then must prove beyond a reasonable doubt that either Mr Hill actually foresaw, or an ordinary sober person in his position would have foreseen that Ms Pollitt's death was a possible outcome of the assault that the State has alleged was committed by Mr Hill. In deciding whether you are satisfied that the State has proved that matter, it will be necessary for you to have regard to the evidence about the possibility that Ms Pollitt could suffer a seizure as a result of the alleged assault.
Obviously if the State has not satisfied you beyond reasonable doubt as to the second element of the offence, then you must find Mr Hill not guilty of the offence of murder. If the State has not satisfied you beyond reasonable doubt that her death was not an event caused by an accident, then Mr Hill will be not guilty of the offence of murder (ts 1823 ‑ 1824).

Ground of appeal

The ground of appeal contained in the appellant's case is:
There was a miscarriage of justice when the learned trial judge failed to adequately sum up to the jury matters relevant to the defence of accident:
Particulars:
1.1The learned trial judge did not link Professor Duflou's evidence concerning the fact that the types of head injuries ('the injuries') the victim had would not usually be expected to result in death with the possibility that the victim's death was an accident.
1.2The learned trial judge did not link Professor Duflou's evidence regarding the injuries and, consequently, the nature of the assault, with the possibility that the victim's death was an accident.
1.3It was insufficient to simply direct the jury to consider professor Duflou's evidence as a whole when considering the defence of accident.
1.4The learned trial judge did not link the possibility of positional asphyxia as a cause of death with the defence of accident.
It is important to note that the ground is confined to one discrete aspect of the directions on accident. There is no suggestion that the directions as to causation were in error. There is no suggestion that the general directions as to accident were in error. Nor is there any suggestion that the directions in regard to the assault possibly causing an unforseen seizure were in error.
The error is said to be that when referring to the injuries and whether death was a foreseeable consequence of the acts that caused those injuries the trial judge should have 'linked' the evidence of Professor Duflou to this issue. In the extract from the summing up above, the part in italics is said to be inadequate in the circumstances.

Merit of the ground of appeal

It is submitted by the appellant that the trial judge should have linked the evidence of Professor Duflou regarding the nature of the injuries to the possibility of the deceased's death being an accident. It is said that this was a matter that could have directly affected the jury's consideration of the foreseeability of death arising out of any injuries inflicted upon the deceased. The submission is supported by a reference to Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 in which Kirby J said that an appropriate direction regarding accident in that case 'would have referred to the language of the Code, to the additional category of exemption from criminal responsibility for "an event that occurs by accident" and to the relevant evidence' [79].
The first thing that should be noted is that at trial counsel for the appellant abandoned any suggestion that accident arose other than in respect of the possibility of a seizure. Trial counsel accepted that the evidence of Professor Duflou that the injuries observed at post‑mortem were not of a nature as to be likely to cause death was relevant only to the question of causation. The ground of appeal seeks to agitate a matter that was abandoned at trial.
In many cases the nature of the defence case is a complete denial. It is often considered imprudent to undermine that case by suggesting that other possible defences may be open if the jury rejects the evidence of the accused. A trial judge, however, is obliged to leave defences to the jury, whether or not relied upon by the accused, if there is an evidential basis for them: Pemble v The Queen (1971) 124 CLR 107, 117 ‑ 118; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, 198. The test is whether there is evidence which, taken at its highest in favour of the accused, could lead a properly instructed jury to have a reasonable doubt that each of the elements of the defence have been negatived: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36].
In R v Taiters, ex parte Attorney‑General [1997] 1 Qd R 333 the Court of Appeal of Queensland examined the objective and subjective elements of the defence of accident. Macrossan CJ, Pincus JA and Lee J said:
If the outcome of some action is regarded as certain or even just more probable than not, it cannot legitimately be called accidental. Even if there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental. On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.
The references which have been made in the cases to 'reasonably' and 'ordinary person' in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities. It directs enquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time for assessing probabilities, this being a factor which is applicable to a great deal of human activity. However, it should not be accepted that some real risk of an outcome which an ordinary person in the circumstances would have been conscious of, can be disregarded by the doer of an action, yet still, if it eventuates, be called accidental within the meaning of the section. In the subjective part of the expression being considered under s 23 ('an event which occurs by accident'), ie when it is necessary to consider 'foreseen' by the accused, the same degree of likelihood regarded as those discussed in connection with the objective test (338).
See also Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372 [83] (Anderson J) and Raux v The State of Western Australia [2012] WASCA 1.
In Taiters the court also referred to the acceptable form of a direction in the following terms:
By way of summary and looking at the matter from the point of view of the prosecution, it can be said that if the circumstances of the case call for the s 23 defence of accident, ie that based on the words 'an event that occurs by accident', to be excluded, the applicable onus will be sufficiently stated if the jury is told that:
the crown is obliged to establish that the accused intended that the event in question should occur or foresaw it was a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.
This casts the matter in acceptable positive form. If this direction is given it will be desirable for the trial judge to add that in considering the possibility of an outcome the jury should exclude possibilities that are no more than remote and speculative (338).
In my view it is open to doubt whether the evidence was capable of supporting the possibility of accidental death, other than in respect of seizure. A jury cannot be asked to engage in groundless speculation: Barca v The Queen (1975) 133 CLR 82, 105. Evidence that the cause of death could not be determined on the basis of the observable injuries does not, in itself, support the possibility that the death was an accident: Munmurrie v The State of Western Australia [2007] WASCA 184.
There is a distinction between causation and accident. In some cases a jury may be able to conclude that the act of the accused has caused the death but cannot be satisfied that that outcome was foreseeable. This issue will usually only arise for consideration in respect of manslaughter rather than murder. In the case of murder an intention to kill or to cause an injury that is objectively life threatening will ordinarily subsume any question of foreseeability: Azaddin v The State of Western Australia [1999] WASCA 265; (1999) 109 A Crim R 474 [19] (Kennedy J).
Causation is concerned with whether the acts of the appellant contributed in a material way to the death. Accident is concerned with whether it was foreseeable that the acts would cause death. The issues are different, but related. Both require consideration of not only the forensic evidence but the whole of the evidence. If the appellant's acts caused the death then this is likely to be because of the nature of the injuries that were inflicted. This says something about the acts that caused those injuries. Accident would only produce a different result if the acts were of a nature as to make death an unforeseeable consequence, notwithstanding that they caused death on this occasion. Examples of this come readily to mind, for example where a person is punched and hits his or her head on the ground thereby incurring a head injury that results in death or where the victim has some unknown and fatal vulnerability: R v Van den Bemd [1994] HCA 56; (1994) 179 CLR 137. But there was little, if any, evidence in that regard in this case. Professor Duflou's evidence did not relate to an immediate cause of death that could not be anticipated or to an underlying vulnerability of the deceased, rather it went to the question of whether the injuries that were inflicted could have been the cause of death.

If the jury was satisfied that the appellant caused death by assaulting the deceased then there was very little room to say that death was unforeseeable. There was some evidence regarding the possibility of a seizure but this was said to be very unlikely in the circumstances. There was evidence of physical vulnerability but nothing to suggest that this had contributed to death and, in any event, this was vulnerability of which the appellant was well aware. On the other hand if the jury had a reasonable doubt that the injuries caused death (based on Professor Duflou's evidence) then they would have acquitted in any event and no question of accident would have arisen.
In the present case the evidence of Professor Duflou could not be viewed in isolation. Professor Duflou could say very little about the acts that caused the injuries, only the injuries themselves. Those injuries might indicate something about the degree of force used, but in many other respects the mechanism by which the injuries were caused was largely unknown. The jury, however, was obliged to consider the whole of the evidence, including the appellant's knowledge of the vulnerability of the deceased, previous violence and threats of violence, the range and spread of injuries and that the appellant had likely left the deceased unconscious and vulnerable and fled the scene. For these reasons it is questionable that the evidence of Professor Duflou could support an inference of accident. If it did it was only in a very limited way.
In any event, the trial judge did refer to Professor Duflou's evidence in regard to accident. But the appellant suggests that he needed to do more, that he needed to recount that evidence in detail and relate it specifically to the question of foreseeability. He did refer in detail to that evidence, but the complaint is that this was only in the context of causation and not accident (except in regard to the possibility of a seizure).
Notwithstanding the limited scope for accidental death, the trial judge directed the jury to have regard to Professor Duflou's evidence as to the severity of the injuries in considering whether death was foreseeable. Whilst it is true that he did not again summarise that evidence at that point, he had done so immediately before when referring to causation. The evidence was the same. No purpose would have been served by repeating it. It was sufficient to make a reference to that evidence. The reference was adequate to direct the attention of the jury to the relevance of that evidence in the context of accident.
The purpose of a summing up is to provide the jury with directions on only so much of the law as is relevant to the issues in the trial and to explain how it applies to the facts of the particular case: Alford v Magee (1952) 85 CLR 437, 466. See also s 112 Criminal Procedure Act 2004 (WA). The extent to which the directions on a particular issue will need to provide details of the evidence will depend on the circumstances. In some cases it may be necessary to refer to the evidence in detail in order to explain how it relates to the law. In other cases it may be sufficient to make a more general reference to the relevant evidence: Domican v The Queen (1992) 173 CLR 555, 561.
There is no general duty of a trial judge to address on the facts. A trial judge is obliged to address on the facts only to the extent that it is necessary to do so in order to ensure a fair trial: The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 and Pezzino v The State of Western Australia [2006] WASCA 131.
To the limited extent that Professor Duflou's evidence was relevant to the question of accident it was only in regard to the possibility of seizure, the nature of the injuries and whether they were such that the person who inflicted them could have foreseen the possibility that death could be a consequence. The trial judge's directions in this regard were adequate. It was not necessary for him to repeat what he had so recently said in summarising that evidence. In the circumstances the jury would have understood that the reference to that evidence was to that recent summary.
In regard to the reliance on Stevens, the circumstances of that case are important. In that case the appellant gave evidence that he had come across the deceased in an apparent attempt to commit suicide with a gun. He said that he had lunged at the deceased in an attempt to stop him and that, in doing so, he had hit the gun which had gone off and fatally shot the deceased. McHugh, Kirby and Callinan JJ, in separate reasons, concluded that there was independent evidence that supported the possibility that the gun may have discharged in the way described. In particular, there was evidence from a firearms expert to the effect that there was a defect in the firing mechanism of the gun which resulted in a propensity for it to discharge when hit. In that case the trial judge had declined to direct the jury on accident. The majority in the High Court held that such a direction should have been given. Callinan J suggested a form of the direction that should have been given by the trial judge in that case. Kirby J made the statement relied upon by the appellant. Neither was purporting to stipulate the form of directions required in every case where accident arises.
In Stevensno direction regarding accident had been given at all. That is not the situation here. Here a direction was given. It accurately described the issue for the jury and referred to the evidence relevant to that issue. There is no basis for the suggestion that what was done did not meet the requirements referred to in Stevens.
As to whether the trial judge was obliged to link the possibility of positional asphyxia as a cause of death with the defence of accident, there was no evidence to suggest that this was a rare or remote possibility. The evidence was that if the deceased was unconscious, face down and bleeding from the mouth, she was likely to have been unable to clear her airways. That accords with commonsense. As the trial judge pointed out to trial counsel, there was no cross‑examination as to this being an unusual outcome in such circumstances (ts 1679). It was open to the jury to conclude that positional asphyxia was the cause of death, but there was no basis for concluding that this was unforeseeable.
In my view the ground of appeal has no reasonable prospect of success and leave in respect of it should be refused.