Kyle Sirous Zandipour v The Queen
[2017] VSCA 179
•7 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0177
| KYLE SIROUS ZANDIPOUR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WARREN CJ, WEINBERG and KAYE JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 14 June 2017 | |
| DATE OF JUDGMENT: | 7 July 2017 | 1st Revision: 14 July 2017, paragraph [73] |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 179 | |
| JUDGMENT APPEALED FROM: | [2016] VSC 387 (Emerton J) | |
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CRIMINAL LAW – Conviction – Murder – Applicant attacked victim late at night outside McDonald’s restaurant – Applicant hurled victim head-first to ground and then repeatedly kicked and stomped on head and neck – Whether trial judge erred by improperly directing jury regarding need for unanimity as regards act or acts causing death – Whether failure to provide complete transcript of charge resulted in substantial miscarriage of justice –Whether failure of trial counsel to put rarity of injury to expert resulted in substantial miscarriage of justice – Whether trial judge erred by improperly directing jury regarding incriminating conduct – Whether verdict unsafe or unsatisfactory – Leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Murder – Applicant sentenced to twenty years’ imprisonment with non-parole period of 16 years – Whether sentence manifestly excessive – Brutal and senseless attack – Sentence within range – Leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J F Desmond with Mr R F Edney | Defteros Lawyers |
| For the Crown | Mr C B Boyce SC with Ms E H Ruddle | Mr J Cain, Solicitor for Public Prosecutions |
WARREN CJ
WEINBERG JA
KAYE JA:
The applicant stood trial on a charge of having, in the early hours of Saturday, 18 October 2014, murdered one Joshua Hardy in the course of a violent attack upon him. He was convicted of that offence, and sentenced to a term of 20 years’ imprisonment. A non-parole period of 16 years was fixed. He now seeks leave to appeal against both conviction and sentence.
Background facts
On the night in question, the applicant and a friend, Matthew Bell, had been drinking and playing video games for some time, at the applicant’s apartment, on St Kilda Road. There was no suggestion, however, that the applicant was inebriated.
Shortly before 1:00 am on the morning of the fatal attack, the applicant and Bell went to the nearby McDonald’s on St Kilda Road to have a meal. They bought some food, and then went outside, where they consumed their meals whilst leaning against one of the tables.
Earlier that evening, Hardy had attended a valedictory dinner at Trinity College, at the University of Melbourne. He had then gone on to a 21st birthday party, held at a venue in Fitzroy Street, St Kilda. He was clearly inebriated at the party,[1] so much so that two of his friends had put him in a taxi, with firm instructions that he was to be taken directly home, to Trinity College.
[1]An autopsy revealed that Hardy had a blood alcohol reading of 0.27 at the time of his death.
However, after a short time, Hardy instructed the driver to stop and let him out. He then made his way on foot to the McDonald’s on St Kilda Road. He arrived there at precisely 1:03 am. By that stage, he had lost both his wallet and his mobile phone. CCTV footage at the restaurant showed him ‘staggering and swaying from side to side’.
Hardy then was seen to lean against a table, not far from where the applicant and Bell were having their meal. The applicant later told police that he believed that Hardy had been staring at him. Bell did not agree. He said that Hardy was most likely staring into the McDonald’s. The CCTV footage seemed to confirm Bell’s account.
Bell described Hardy as having ‘hovered’ near them both. He added that Hardy appeared ‘a little bit lost’. In any event, after a short time, Hardy got up and walked away, in the direction of the city. He stopped, and stood still for a few moments. For whatever reason, he then walked back and leant against a table, close by the applicant and Bell. He was facing the two of them.
At that point, the applicant and Bell rose to leave. They then walked across in front of Hardy. As Bell was passing, Hardy stuck out his leg, seemingly in an effort to trip him. Bell turned and asked, ‘why the hell are you trying to trip me?’
According to Bell, Hardy then stood up and asked him whether he had a phone. He repeated that question several times. The applicant had, by that stage, turned around and noticed that something was happening. He returned to where Hardy and Bell were standing. Bell held out one hand towards Hardy. When Hardy reached for it, Bell knocked Hardy’s hand away. Hardy then took a step towards Bell, who responded by pushing him in the chest. Hardy then staggered backwards.
Hardy next took two steps towards Bell. His arms were slightly outstretched, and his palms facing forwards. At that point, the applicant, without any warning, grabbed Hardy’s left arm and swung him forcefully around, head–first onto the ground. The CCTV footage then showed the applicant, within a few seconds, kicking Hardy a number of times to the head and neck area, and finally stomping down on Hardy’s head.
The applicant and Bell then turned and walked away. Neither stopped to see if Hardy had been injured, or needed assistance. They brushed off a young woman who had come out of McDonald’s and who expressed alarm at seeing Hardy face down, and motionless on the ground. Another patron caught up with them, and the applicant pushed him away. He then left the scene, running off back to his apartment. Bell went there as well, albeit via a different route.
Hardy was conveyed to the Alfred Hospital, but pronounced dead shortly after his arrival.
Bell gave evidence to the effect that, when the applicant and he arrived back at the apartment, they discussed what might happen if Hardy had died. The applicant said it was not something that he had considered, as he did not think that it could have happened. The applicant maintained during the trial, and on the plea, that he had been acting throughout in self-defence. He claimed that he had feared that Hardy was going to attack both Bell and himself.
Grounds of appeal
Conviction
The applicant seeks leave to appeal against conviction on the following grounds:
1. The learned trial judge erred in failing to direct the jury that to convict the applicant of murder they were required to:
a.make a finding as to the act or acts of the applicant which caused the death; and
b.the need for unanimity as to which act (‘the throw’) or group of acts (‘the kicks and the stomp’) caused the death; and
c.the need for unanimity as to the act or acts causing death coinciding with an intent to kill or cause really serious injury absent a belief in self-defence.
2.A fundamental irregularity has occurred in the applicant’s trial that has caused a substantial miscarriage of justice in that the jury were provided with an incomplete transcript of the judge’s revised charge.
3.A substantial miscarriage of justice has occurred because of the failure of counsel to put to the prosecution expert witnesses that the laceration of the left vertebral artery was ‘rare’ and/or to adduce evidence from Dr Byron Collins that laceration of the left vertebral artery was ‘rare’ or ‘very rare’.
4.The learned trial judge erred in directing the jury concerning ‘incriminating conduct’ only to the effect that it could be used as evidence the accused believed he had committed the offence charged or another serious criminal offence and should have directed the jury that the evidence could only be used on the charge of murder as evidence, if accepted, that the accused knew or believed he had committed the relevant act causing death with murderous intent.
5.The verdict is unsafe and unsatisfactory or cannot be supported having regard to the evidence, in that the jury should have had a reasonable doubt as to whether the applicant had an intention to kill or cause a really serious injury.
Sentence
The applicant seeks leave to appeal against sentence on the following ground:
1.The sentence imposed upon the applicant is manifestly excessive in light of the Applicant’s:
a. Demonstrable remorse;
b. Exceptional work history;
c. Significant family support;
d. Good prospects of rehabilitation;
e. Unlikelihood of re-offending.
Conviction
Ground one — Need for unanimity re act or acts causing death
The applicant submitted, in support of this proposed ground, that the trial judge had erred in failing to direct the jury that they could not convict of murder unless they were all agreed upon which act or acts had caused Hardy’s death.
There had been undisputed medical evidence led by the Crown that Hardy had died from a lacerated left vertebral artery, resulting in a subarachnoid haemorrhage.[2]
[2]A subarachnoid haemorrhage is any bleed located underneath one of the protective layers of the brain known as the arachnoid layer. This can result from a head injury occurring from a fall, or other trauma to the head.
However, as regards what specific act or acts could have caused the rupture to the artery that had led to Hardy’s death, the evidence was said to have admitted of several possibilities. One of the main witnesses in this regard was Dr Heinrich Bouwer, a forensic pathologist. In his opinion, death could, theoretically, have resulted from Hardy having been grabbed by the left arm and flung heavily to the ground, hitting his head. More likely, it could also have resulted from a blow or blows delivered to the left side of the face, seemingly by kicking and stomping. Dr Bouwer said that any of these acts could have led to the rupture of the artery. However, he favoured the kicking and stomping to the left side of the neck as being the operative cause of the damage to the artery.
Under cross-examination, Dr Bouwer acknowledged that the deceased’s blood alcohol reading of 0.27 meant that his blood vessels might have been ‘more prone to rupture’. He also accepted that the deceased’s inebriation might have led to greater rotation of the head than would otherwise have occurred. His evidence was that ‘if you fall at the right angle, causing the head to rotate and go backwards, it can lacerate the artery’.
Dr Linda Iles, also a forensic pathologist, identified the cause of death as ‘basal subarachnoid haemorrhage’. She said that the haemorrhage had most likely occurred as a result of the ‘left vertebral artery defect … laceration’. In her opinion, as was the case with Dr Bouwer , the rupture was most likely caused by a ‘punch or kick’ to the region of the neck and jaw. However, also like Dr Bouwer, she could not exclude the possibility that the ‘fall’ or ‘throw’ had resulted in the laceration of the vertebral artery.
It was clear from the evidence of the two pathologists that they considered that the most likely cause of death was the combination of kicks and stomp to the head. Nonetheless, given that neither could wholly exclude the possibility that the rupture had been brought about by the throw to the ground, an issue arose as to whether the jury could convict without being able unanimously to agree upon which act or acts brought about the deceased’s death.
The applicant submitted that, in his closing address, the prosecutor had recognised that this was a live issue by inviting the jury to convict even if not satisfied of the Crown’s primary position, that it was the kicks and stomp that had caused the ruptured artery.
How the issue of unanimity arose at trial
The prosecutor said, in his closing address, ‘so, even if you thought it was open as a reasonable possibility that what might have caused the death was the throwing to the ground, you would still be able to find the accused man guilty of murder…’. Similarly, he went on to say to the jury that:
it might be considered an attack in two phases: the throwing to the ground being the first, and the kicking and the stomp second. But in reality, the prosecution would suggest you should consider this as one violent, short-lived continuing assault that went for six seconds … yes, two aspects to it but nothing fundamentally different about those aspects.
Before this Court, the applicant noted that the defence case throughout had been that there was insufficient evidence of either an intent to kill or cause really serious injury. That was developed into a submission, in effect raised for the first time before us, that the prosecution had failed to exclude the reasonable possibility that it was the ‘throw’, and not the kicks and stomp, that had caused the death.
In addition, it was noted that the defence had run a separate and alternative defence, namely that whatever the applicant had done to Hardy was done in legitimate self-defence.
It is important to understand the way in which the issue of unanimity, which forms the basis of this proposed ground of appeal, arose at trial. For that reason, we shall set out in some detail the history of the matter below.
The prosecutor’s opening address
When the prosecutor opened the case to the jury, he observed that the particular physical actions that led to the death of the deceased ‘occupied about six seconds, a moment in time, really’. He referred to the considerable ferocity of the attack, and focused upon the blows to the head and neck which was where the kicks and stomp, the evidence would indicate, connected.
The prosecutor commented upon the fact that the kicks and stomp were delivered with such force that they caused the deceased’s body to shift position so that after they were delivered his head was facing towards the city, rather than away from it, as had been the case when he was slung to the ground.
The prosecutor opened the case on the basis that the evidence of the two pathologists to be called would establish that the lacerated vertebral artery was the result of ‘focal force’ to the left side of the neck, consistent with having been caused by one or more of the kicks or the stomp administered by the applicant. He added that their evidence would be that the injury sustained by the deceased could be sustained by a fall onto a surface, but there would need to be some sort of edge or something else to actually hit that part of the neck on, and not merely a fall on to the footpath. The prosecutor added that Dr Bouwer’s evidence would be that the injury sustained by the deceased was not consistent with having been caused merely by a fall, but must have been brought about by the kicks or stomp. He said that Dr Iles would support that conclusion.
At a later stage in the opening address, the prosecutor said:
the evidence will strongly support the contention that it was one or more of the kicks or the stomp by the accused to the head or neck of Mr Hardy that directly caused the damage but … the prosecution is not dependant on proof of which kick or stomp it was, or whether indeed it was one of the kicks or stomps, as long as it was something during the course of this overall unlawful attack.
The prosecutor then added:
So the attack only occupied six seconds, but was of such a level of ferocity…as to indicate that, at the time of the attack, from its commencement until its conclusion the accused intended to kill Joshua Hardy, or at least to cause him really serious injury.
Dr Bouwer’s evidence
When Dr Bouwer gave evidence, he was asked about a five by five centimetre deep left jaw angle bruise, which extended all the way to the vertebrae and surrounded the bone to the left side of the neck. He said that it had probably been brought about by two separate applications of force to the side of the head.
Dr Bouwer was asked what, in his opinion, was the cause of the fatal injury. His answer was as follows:
It’s a combination of being grabbed by the left arm, being flung to the ground, hitting the head, and then a blow delivered to the left side of the face so any of these could have ruptured, but I would favour the blow that was applied to the left side of the neck caused the damage to the artery.
Dr Bouwer was of opinion that the deep bruising had been caused by some mechanism other than the throw to the footpath, and explained why that was so. He described the area of the bruising as relatively protected, and could not see how just landing on the side of the neck, as from a fall, could produce that effect without any sign of bruising being externally visible.
When asked to clarify what he meant by ‘favour that’, and whether his evidence admitted of the possibility that the throwing to the ground itself had caused the injury, Dr Bouwer indicated that he accepted that as a possibility. Nonetheless, he went on to say that he did not believe the throw to the ground could have caused the deep left jaw angle bruise all the way to the vertebrae that the autopsy had revealed. When pressed further, he said that he could not say which of the kicks or stomp had brought about the rupture, but added that it was mostly likely the stomp, though it could have been any of the kicks delivered to the head. He said that nothing else that he had seen could explain the lacerated artery.
In re-examination, Dr Bouwer reiterated that it was his belief that it was the kicks and stomp to the head that had led to the fatal injury.
Dr Iles’ evidence
Dr Iles, when asked about the deep bruising extending all the way to the vertebral column, replied that this was classically the result of a blow in the region of the base of the skull, emanating from blunt force trauma. Shortly thereafter, when asked what she believed to have been the cause of the lacerated artery, and the bruising under the skin which was associated with it, she replied that it would be the kicks directed towards the deceased’s head. She said:
In the setting of a fall, I would be looking to see if there was an object that Mr Hardy may have fallen upon to actually give him that bruising and to cause some rotation. I can’t see any objects on that footage, for example, a planter pot or a kerb or something that might be an alternative explanation.
Dr Iles was, if anything, even firmer in her evidence that it was the kicks and stomp that had resulted in the fatal injury. She accepted as a theoretical possibility that it might somehow have been brought about by the fall alone. In re-examination, however, she said that she did not believe that this was the case because there was nothing to suggest ‘focal impact’ from the fall, of the kind required to produce the rupture to the artery. Her evidence on this point was as follows:
You just said in relation to this the bruising, the bruising to the neck, that there was significant force applied to that area to cause the bruising, is that right? Um, yes.
Do you believe that that bruising could have been caused in that throwing to the ground or not? Um, given, as I have described, that this is a protected area and there’s no, nothing focal to cause that focal impact, then, no, I do not.
It was put to you by [the applicant’s trial counsel], as I understand it, that that bruising, that deep bruising to the neck, may not be related at all to the main injury that caused the death, namely the lacerated artery; what do you say about that? The combination of bruising in that area and a lacerated intracranial vertebral artery is a very typical finding in this scenario, in fact it’s a textbook finding.
Do you, insofar as it was I mean, you said they could theoretically be two separate incidents; do you believe that to be the case or not? I don’t believe that to be the case but I have to, as it was put by counsel in the way that he put it, I couldn’t say that it’s impossible.
What do you mean in the way that he put it? That if you call them entirely separate events, even though I think it’s incredibly unlikely that they are entirely separate events, I couldn’t disagree with his proposal.
The trial’s judge’s initial concern re unanimity
The next thing that happened, with regard to any proposed direction as to unanimity, was that on the 23 May 2016 (the sixth day of the trial) and shortly before the prosecution case was closed, the trial judge raised with the parties the issue of causation. She queried whether that involved ‘the Crown in clearly identifying the act or acts said to have caused [the deceased’s] death’.
The prosecutor immediately replied by saying that the Crown case had been clear from the start, namely that it was the entirety of the assault from the point when the accused grabbed Hardy’s hand to the point where he inflicted the final stomp to the head, that had caused death. He added that the Crown submitted that the death happened during the course of that ‘continuing assault’, and that the Crown did not have to establish which particular act brought about the fatal injury. Nonetheless he agreed that the Crown case was put primarily on the basis that it was the kicking or the stomp that had caused the death.
After the close of the prosecution case on that same day, there was further discussion regarding the issue of identifying the act which resulted in death. Trial counsel, at that stage, raised the issue of what he called the ‘two-fold situation,’ the first being a throw to the ground and the second the kicks and stomp. He noted that the prosecution case had been that this was all one continuous act, with the most probable cause of death being the kicks or stomp to the head. He recognised that the prosecution case was that this had been a continuing assault in the course of which damage had been done to the vertebral artery.
Trial counsel then, for the first time, suggested that the case might be seen by the jury as a ‘two-step’ process, and should be left to them on that basis. He said that self-defence was open, but said nothing at all about any direction as to unanimity with regard to the act or acts resulting in death.
It was the prosecutor who took issue with the case being left on the basis of separating out the throw from the kicks and stomp. He noted that no suggestion of that kind had been made during the earlier trial of this matter before Lasry J, which had resulted in a hung jury. He submitted that trial counsel had not argued for a unanimity direction before Lasry J, and noted that no such direction had been given.
Her Honour then referred to two cases, Meyers v The Queen[3] and Dookhea v The Queen,[4] which she regarded as possibly relevant to that issue. The matter was left unresolved at that stage, though it seems that the defence may well have still embraced unanimity, whereas the prosecutor clearly submitted that no such unanimity direction was necessary.
The prosecutor’s closing address
[3](1997) 147 ALR 440.
[4][2016] VSCA 67.
The prosecutor then addressed the jury. He referred to the attack upon the deceased as a ‘frightening display of violence, all of which took place in six seconds’. He noted that the deceased, an uncoordinated and heavily intoxicated young man, had been slammed head first into a footpath for no reason, and then set upon with the use of multiple kicks to the head (at least three) with one final departing stomp. He invited the jury to treat the claim of self-defence as nonsense. He submitted that they should reject theoretical possibilities, and be satisfied beyond reasonable doubt that the six second attack showed a violent, forceful and dangerous course of conduct. He focused heavily upon the kicks to the head and the stomp as the cause of death. He submitted that the evidence was that these, one or more of them, had ruptured the vertebral artery.
The prosecutor noted that both Dr Bouwer and Dr Iles had left open, though in his terms, merely as a theoretical possibility, what might have caused the fatal injury was the throwing to the ground, rather than the kicks and stomp. He went on to reiterate that in combination, the evidence of Dr Bouwer and Dr Iles made it abundantly clear that the lacerated vertebral artery had been brought about by trauma directed to the base of the skull of a kind that was highly likely to have been the product of the kicks and stomp, rather than the fall resulting from the throw.
It is true that the prosecutor went on to say that the Crown case did not depend upon that being proved. He said:
On any view, there is obviously no doubt at all that the accused, by his violent physical actions in throwing Joshua Hardy to the ground then repeatedly kicking him and stomping on his to the head and neck caused his death. So you will have absolutely no doubt about that. I would suggest to you that the evidence would well and truly entitle you to make a more detailed and specific conclusion, namely, that it was the — what you would call the second phase of the attack, the kicking and the stomp after Mr Hardy was helpless on the ground, that caused the actual fatal injury but, as I say again, that does not need to be established.
The trial judge’s proposed direction
During the course of a break, near the end of the prosecutor’s closing address on the following day, the trial judge provided the parties with some handouts and a diagram. She indicated that she was not wedded to the directions outlined therein, but proffered them for the parties’ comments. The prosecutor then concluded his closing address, as did trial counsel on the following day.
At that stage, the prosecutor indicated that he had a concern with the way in which her Honour had proposed to summarise the Crown case to the jury. He said:
…my central position was that the jury should be satisfied and, indeed, could be satisfied to the necessary extent, which would obviously be beyond reasonable doubt that what caused the ruptured vertebral artery was a kick or kicks or the stomp.
The prosecutor went on to say that he had advanced that thesis to the jury as being ‘the main position’. He then stated:
Of course, Your Honour, the Crown then had the back – up position which was a subsidiary position, which was, well, even if you had a reasonable doubt about that, you could be satisfied – there is no doubt that the actions of the acts of the accused at some point during the event caused the death and you can also be satisfied beyond reasonable doubt on all of the evidence that the accused had the necessary intent for the crime of murder throughout the whole event, and I think that much is clear in the pages that you provided to counsel, Your Honour, but it did seem appropriate to point out that really the Crown was very strongly saying to the jury that based on the evidence of the experts that the jury would be entitled to conclude that it was the kicking or the stomp that caused the death.
HER HONOUR: All right. Well, I can clarify that. The central point though is that the jury is being asked to consider the other elements in the context of the episode as a whole.
PROSECUTOR: Absolutely.
HER HONOUR: That’s the critical thing. I don’t want to have to give them a unanimity direction in relation to causation given what happened in the last trial.
Shortly thereafter, the prosecutor put the matter this way:
What the jury need to be satisfied of beyond reasonable doubt is that the accused caused the death and that at the time he caused the death he had the intention to kill or cause really serious injury and did not act under a belief of the need for self-defence. But the jury might look at all I am really saying or submitting, Your Honour, is if the jury were left in a reasonable doubt about at what point it was that it happened, if the jury considered it a reasonable possibility that it might have not been in the kicking, it might have actually been right at the start in the throw, they need to understand that if they thought, if that was a reasonable possibility then they would need to be satisfied that at the time of the throw the accused had the necessary intent for murder and did not act under a belief in the need for self-defence.
I mean, although the evidence of the experts seemed clear enough, obviously the Crown and the defence have both put it to the jury in a different way. [the applicant’s trial counsel], not surprisingly, cottons on to Dr Bouwer and Dr Iles saying well, it is possible. The Crown, on the other hand, puts a lot more emphasis on, for example, the fact that Dr Iles said, you know, what was the term she used, ‘incredibly unlikely’, you know, and the Crown obviously has made the submission that the jury would be entitled to be satisfied beyond reasonable doubt that it was in that second part of the attack that it all occurred but has said it doesn’t matter. The defence have said it does matter. [The applicant’s trial counsel] didn’t actually go on to say anything that I can recall to the jury about
The trial judge’s revised direction
At that stage, her Honour indicated that she did not consider it ‘necessary for the jury to make any decision about what act or acts’ they might think had caused the deceased’s death. Of course, the context for that statement was that her Honour had, by that stage, provided the parties with a ‘revised version’ of parts of the charge that would not now include the unanimity direction that she had originally considered might be appropriate.
The applicant’s counsel was then heard to say that he saw no need for her Honour to ‘tweak’ the proposed direction regarding unanimity. However, the judge then said:
I think [the prosecutor] wants me to make clear that the Crown’s primary position is that it is a phase two causation, if I can put it colloquially, not a combination, but if the jury considers that there’s a reasonable possibility that phase one is in play then they have to look at the thing globally when they come to consider intention and self-defence. That’s what I am heading to, all the while trying to avoid any suggestion that there ought to be a unanimity direction because I don’t want this jury to have to make more decisions than they need to.
TRIAL COUNSEL: I understand.
HER HONOUR: All the while being fair to both parties.
TRIAL COUNSEL: If Your Honour pleases.
It is fair to say that, at this stage, trial counsel at trial seemed content with her Honour’s explanation, and with the deletion from the proposed charge of any reference to the need for unanimity as to the specific act or acts that resulted in death.
The judge came back to the issue, however, later that day. She said that she was still troubled as to whether, having regard to the evidence as to cause of death, the jury would have to make a choice, and all have to be ad idem regarding that choice. She proffered the example of half the jury having decided that death resulted from a kick or kicks, and the other half being satisfied that it was brought about by the throw. Trial counsel, not surprisingly, said that he was attracted by the ‘intrinsic logic’ of the judge’s analysis, and submitted that she should direct the jury accordingly.
At that point, the prosecutor was heard to say:
Well, the problem with that in the context of this case is that if that formulation is correct it means that if every single juror is satisfied beyond reasonable doubt, as, of course, they would be because it is not challenged, that the acts of the accused, one or other of them, caused the death and if every single juror is satisfied beyond reasonable doubt, as they might be, that at the time of all of the acts, from start to finish, the accused intended to cause death or really serious injury and was not acting in self-defence, then in spite of that fact that every juror believed those things, that because the jurors could not be unanimous about which particular part of the acts or one of the act caused the death, they could not find the accused guilty of murder. That cannot be the case.
HER HONOUR: But isn’t the difficulty that you are saying these are the acts, there’s a cluster of them, they’re the kicks and the stomp and not the throw and [trial counsel] is saying the throw is at least a reasonable possibility, in which case it can’t be those other things. So, as I said this morning, there’s a fork in the road.
PROSECUTOR: But the point is, Your Honour, if the jury are satisfied – it is not in dispute that the accused carried out all of those acts. Now, if the jury are satisfied that one or other of those acts must have caused the death, which they would have to be, then – but if they were not able to look at it and determine which particular one, as long as they are satisfied beyond reasonable doubt that at the time of all of the acts the accused intended to cause death or really serious injury, then a conviction, assuming self-defence is excluded, a conviction for murder would be inevitable. But it cannot be the case that the accused could be acquitted of murder when everyone, every juror concludes that he caused the acts that caused the death and every juror is satisfied that at the time of those acts, whichever they were, the accused intended to cause death or really serious injury and did not act in self-defence, but because the juror can’t say which particular acts, for some reason the prosecution fails. That, as a matter of logic, in my respectful submission, can’t be so. There’s only one way in fact, in reality that this case is put. I mean, I’ve endeavoured to say, of course, to the jury that the evidence would justify a conclusion that it was the kicks or the stomp but the Crown never limited itself to that and, indeed, more generally, the Crown relies, of course, on all of the acts and if – – –
HER HONOUR: Well, you pulled me up this morning for the version that said, ‘The most likely is this but it could be any’.
PROSECUTOR: Well, I did say because, Your Honour, because the way the Crown went to it was more than likely, it was overwhelming evidence of it, but that’s not to say that that’s the only way, and I said half a dozen times or I said in my opening address and I said a number of times in my closing address, the Crown does not, in effect, undertake to prove that and if you – as long as you are satisfied that the accused’s acts caused the death and as long as you are satisfied then that the other elements of the crime of murder coincide with the acts that did or may have caused the death, then that would suffice. But the issue you have raised as to unanimity is perhaps, with respect, a slightly different one. Obviously, I don’t have the case of Meyers in front of me at the moment but there will be some cases where, because of alternative ways in which a case is put or possible alternative formulations, in some cases, but not in every case, it may be necessary for there to be unanimity about that – about which one the jury come down in favour of, but it’s a long way from being every case …
Shortly thereafter the prosecutor said:
No, no, it’s that the acts of the accused caused the death, his direct acts and it’s just which ones, was it the was it the I mean, Your Honour, if you had, just to state an absurd sort of case, if you had 20 punches and the Crown said the, you know, what’s relied on is the acts of the accused by punching the deceased 20 times and, you know, there was some evidence that suggested one punch might actually have been the one responsible but other evidence pointed in other direction, it couldn’t be surely expected that a jury would need to be, even if the Crown was tending to hang its hat on one part of it that the jury would need to be necessarily unanimous about that aspect of it, as long as they are unanimous as to the causation issue.
There the matter stood. Before her Honour finally charged the jury on this issue, there was still further discussion. The prosecutor referred to various authorities, in some of which it had been held that a unanimity direction had been required. He noted that these were cases where there were alternative hypotheses as to cause of death separated by a substantial period of time. He submitted that these were far removed from the situation that prevailed in this case, namely a total period of about six seconds, in circumstances where the accused did not dispute that he had caused the death. He added:
If there were, let’s say, some jurors who are satisfied beyond reasonable doubt in their minds that it was a kick or kicks that caused the death – that’s one thing and if there were other jurors who were not satisfied beyond reasonable doubt of that and think it’s possible, reasonable possible, that the throw caused the death or simply don’t know whether it was the throw or the kick, that does not matter as long as every single juror is satisfied that the acts of the accused caused the death, and is also satisfied beyond reasonable doubt that at the time of the acts that caused or might have caused the death, the accused had the necessary intent for murder and did not have a belief in the need for self-defence.
After hearing further argument, the judge ruled that she would direct the jury in the following terms:
It’s a matter for you, but given the clear evidence of doctors Bouwer and Iles that the lacerated artery was associated with the deep bruise in the neck and was probably caused by a blow to the side of the head or neck, you should think very carefully before rejecting the possibility that the lacerated artery was caused by a kick or a stomp. If you accept the possibility that the lacerated artery was caused by a kick or a stomp then when you come to consider element 3, for example, you have to consider whether Mr Zandipour had the relevant intent at that time. However, if you think there’s a reasonably possibility that the throw caused or was one of the causes of Mr Hardy’s death then you have to consider whether Mr Hardy’s had the relevant intent at that time, that is, when he put Mr Hardy to the ground. In this case, the different acts that may have caused Mr Hardy’s death occurred during an episode that lasted six seconds. The prosecution described this episode as one continuing attack and put it to you that the evidence establishes that Mr Zandipour had the same intention and the same belief or lack of belief in the need for self-defence throughout.
It is the prosecution case that the relevant murderous intent and indeed the lack of belief in the need for self-defence was present throughout the episode. This is therefore not a case where it’s necessary for you to identify precisely which one or the one of Mr Zandipour’s acts caused the lacerated artery. The prosecution relies on evidence that it says proves the presence of murderous intent and lack of belief in the need for self-defence throughout the whole episode.
In considering the episode as a whole and the events surrounding it, you will either be satisfied that these mental elements have been proved by the prosecution for all the acts that could have caused Mr Hardy’s death or you will not be so satisfied. It’s not in dispute that one or more of the acts of Mr Zandipour during the second episode caused the death of Mr Hardy. As a result, you should have no difficulty in finding the element of causation proven.
It is fair to say that counsel for the applicant at trial took no further exception to what her Honour proposed to say, and ultimately did tell the jury.
The charge
In her Honour’s charge, she said:
In this case, the Crown’s position is that all of those things coincided, whichever one of Mr Zandipour’s acts is considered. The Crown says that Mr Zandipour’s mental state was the same throughout the six second episode so it is not necessary for you, the jury, to identify a particular act or particular acts as causing death. You can be satisfied of the existence of the requisite mental state in relation to each of the acts and at all times during the episode. Nonetheless, the Crown’s primary position is that one or more of the kicks or stomp to the side of the head caused the lacerated artery but not the throw.
This means it must prove beyond reasonable doubt that the intention to kill or cause really serious injury accompanied all of the kicks and the stomp because no one can say for certain which of those acts caused the lacerated artery. You will recall the evidence of Dr Bouwer that I just took you to, that he couldn’t say which one.
For its part, the defence has raised the possibility, and one that it says is a reasonable possibility, that the throw alone caused Mr Hardy’s death. If you accept the possibility that the lacerated artery was caused by a kick or a stomp, then, when you come to consider element 3, for example — that’s intention to cause death or really serious injury — you have to consider whether Mr Zandipour had that relevant intent, sometimes referred to as ‘murderous intent’, at the time that he delivered all of the kicks and the stomp. However, if you think it is a reasonable possibility that the throw caused or was one of the causes of Mr Hardy’s death, then you have to consider whether Mr Zandipour had the relevant intent, the murderous intent, at that time, that is, when he threw Mr Hardy to the ground.
In this case, as I say, the different acts that might have caused Mr Hardy’s death occurred during an episode that lasted six seconds. The prosecution has described this episode as one continuing attack and put it to you that the evidence establishes that Mr Zandipour had the same intention, and if you are looking at self-defence, the same belief or lack of belief for the need for self-defence, throughout the entire episode. It is the prosecution case that the relevant murderous intent and, indeed, the lack of belief in the need for self-defence was present throughout. If you were satisfied of that, it would cover the situation whether you thought the kicks, any of the kicks or the stomp, might have been the cause of death or the throw might have been the cause of death.
The law on this matter is this. In circumstances where all the elements of the crime of murder must be proved to have existed at the time of whatever act or acts caused death, if you are in any reasonable doubt about whether the injury has been proven to have been caused by the kicking phase of the attack, in other words, if you think it is a reasonable possibility that the throw to the ground might have caused the injury or if you simply can’t find which act caused the injury, then you could not find the accused guilty of murder unless you were satisfied beyond reasonable doubt that the murderous intent and the lack of belief in the need for self-defence have been proven to have existed throughout the episode.
Now, it is not in dispute that one or more of the acts of Mr Zandipour during the six second episode caused the death of Mr Hardy and as a result you should have no difficulty in finding the element of causation proven. But, as I say, you need to think about these things in relation to the other elements that I am about to take you to.[5]
[5]Emphasis added.
No exception was taken to this direction by the applicant’s trial counsel.
Nonetheless, the applicant now contends that, having regard to the medical evidence regarding cause of death, and the possibility that the rupture to the artery may have been brought about by the throw alone, this was a case where a direction on unanimity as to the particular act that resulted in death was required.
Before this Court, the respondent essentially adopted the approach taken by the prosecutor at trial, and submitted that this was not a case that called for a unanimity direction of the kind for which the applicant now contended.
The relevant legal principles governing unanimity directions
It has long been understood that, putting to one side the possibility of a majority verdict, it is a fundamental principle that, in arriving at their verdict, the jury must be agreed that every ingredient necessary to constitute the offence charged has been established.[6]
[6]R v Brown (1984) 79 Cr App R 115.
There is a line of authority to the effect that a jury dealing with a charge in an indictment that alleges fraud, and contains particulars of statements said to have been false or deceptive, must unanimously agree upon at least one particular as being fraudulent if there is to be a conviction. There cannot be a composite verdict whereby some members of the jury are satisfied that a particular representation was false, while others are satisfied only as to a different representation.
The position is otherwise where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so. In such circumstances it is sufficient to establish the ingredient that any one of them is proved.[7]
[7]Ibid. See also, for further elaboration of the position in England, R v Agbim [1979] Cr LR 171 and R v More (1988) 86 Cr App R 234.
Thus, in such cases, the jury must not simply be unanimous as to the fact that a false statement was made, but where more than one is averred, they must be unanimous about at least one of them.[8]
[8]There is still some uncertainty as to whether or not this principle applies to the various forms of handling stolen goods. See generally JC Smith, ‘Satisfying the Jury’ [1988] Crim LR 335 and R v Gaughan [1990] Crim LR 880.
In this country, a similar approach appears to have been taken with regard to allegations of fraud. The point is best exemplified in R v Walsh, a case concerning conspiracy to defraud involving multiple misrepresentations.[9] There, the circumstances requiring unanimity were summarised by Phillips and Buchanan JJA as follows:
To sum up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on ‘unanimity’ about one or other or more of those bases, at least if they do not ‘involve materially different issues or consequences’… The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence’. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.[10]
[9](2002) 131 A Crim R 299 (‘Walsh’).
[10]Ibid 316–317 [57] (citations omitted).
In Magnus v The Queen,[11] the appellant had been convicted of 53 charges of obtaining financial advantage by deception, all of them arising from his having solicited investments for a private betting fund. Each charge contained between three and six particulars, being different false representations said to have been made to the various investors. The appellant contended that the trial judge had erred in failing to direct the jury that, as to each charge, they had to be unanimous as to the particular statement said to have been materially false.
[11](2013) 41 VR 612.
It was held that the jury should have been directed that they had to be unanimous in finding that a particular representation was operative. In other words, the jury had to agree that the particular words or conduct that supposedly constituted the actus reus of the offence amounted to an operative deception.
Nonetheless, it was held that, having regard to the circumstances of the case, there was no prospect that the jury would have convicted the appellant on any charge unless they were unanimous in finding that a particular representation had been made, and that that representation had been operative. A verdict of guilty was therefore inevitable and the appeal was dismissed.
Somewhat related reasoning was followed, albeit in a different context, in R v Trotter.[12] There a conviction for indecent assault upon a child of 12 was set aside as the complainant gave evidence of two quite separate assaults, one in a bedroom and an earlier one in a bathroom, both on the same day, and at roughly proximate times. It was held that the conviction was uncertain because the prosecutor had not specified which of the two assaults was the subject of the charge. Though it was clear that the jury must have been unanimous that the applicant had committed an indecent assault on the child, it was impossible to know whether they were unanimous as to the same act.
[12](1982) 7 A Crim R 8.
As stated in Walsh, the position is quite different when, for example, the prosecution relies upon alternative bases of liability, namely aiding and abetting murder, or joint criminal enterprise. In R v Leivers & Ballinger[13] the Queensland Court of Appeal held that the jury need not have been directed that they had to be unanimous as to which form of complicity the Crown had established, as long as they were all satisfied that one or other of those bases of liability had been made out. That was because the alternative forms of complicity did not involve ‘materially different issues or consequences’.[14]
[13][1999] 1 Qd R 649.
[14]Ibid 662.
There are other cases to the same effect. In R v McCarthy,[15] a case that is of particular importance so far as the present matter is concerned, the issue was whether the prosecution case that the accused had inflicted a number of forceful blows (described as the ‘striking case’) followed shortly afterwards by a final act of asphyxiation (described as the ‘asphyxiation case’) upon the deceased required a unanimity direction. It was held that no such direction was required as the two cases were separated in time by only minutes and in space by only metres. They were not in any sense inconsistent or mutually exclusive as causative of death.
[15](2015) 124 SASR 190 (‘McCarthy’).
Again, in a similar vein, was R v Heaney.[16] In that case, an accused had, during the course of a single incident occupying a short period of time, used two different knives to stab a woman with whom he had been cohabitating. It was held that the accused could not be convicted unless the jury were unanimously satisfied that one of the two stabbings involved a conscious and voluntary act, committed with murderous intent. The argument that the verdict was unsafe because some members of the jury might have been so satisfied with respect to one of the stabbings, and others only with respect to the other, was rejected. The trial judge’s characterisation of what had occurred as a single transaction was regarded as correct.
[16](2009) 22 VR 164.
In the present case, the trial judge referred on several occasions to three cases which she regarded as relevant to this issue.
In Meyers v The Queen,[17] the appellant was convicted of the murder of his girlfriend. He had inflicted several head injuries upon her, from one or more of which she died. He appealed against conviction on the basis that the jury could not reasonably have found that the particular act causing death, whatever that may have been, was done with murderous intent. In dismissing the appeal, the High Court held that, if the circumstances of a fatal altercation were such that the prosecution could prove that some acts were done with murderous intent, but could not prove that other acts were done with that intent, no conviction for murder could be returned unless there was evidence on which the jury could reasonably find that the specific act which caused the death was one of those done with the necessary intent. There was such evidence.
[17](1997) 147 ALR 440.
In R v Klamo,[18] the appellant was convicted of the unlawful and dangerous act manslaughter of his four week old baby son. He admitted that he had shaken the child about a week before he died. The prosecution called a pathologist who concluded that the baby’s death had been caused by a subdural haemorrhage which had occurred sometime in the 24 hours prior to death. That witness identified three possible causes of the haemorrhage. These were: (a) a spontaneous re-bleed (which the witness considered was not the cause, but which he could not rule out); (b) direct trauma and (c) indirect trauma, possibly by shaking. The latter two forms of trauma could not be excluded as possibilities.
[18](2008) 18 VR 644.
The prosecution case was that the relevant act was either a shaking of the baby on the night of his death or, alternatively, the earlier admitted shaking. In directing the jury on the need for unanimity, the trial judge did not direct that they had to be unanimous as to which of the two alternatives was the basis of conviction. This was held to be an error giving rise to a miscarriage of justice, based upon the principles laid down in Walsh.
The third case, to which her Honour referred, was Dookheea v The Queen.[19]There, the appellant had been convicted of murder. One of the grounds upon which the appeal proceeded was that a unanimity direction had been required.
[19][2016] VSCA 67 (‘Dookheea’).
In Dookheea, the deceased died as a result of neck compression, in other words, strangulation or manual asphyxia. During the appellant’s counsel’s closing address, he suggested to the jury that death might have resulted, not from initial neck compression during the course of a fight which took place outside the victim’s house, but from dragging the victim into the house thereafter, with significant weight being placed on his back once inside. In other words, there were at least two separate acts that might have resulted in the asphyxia. These were an initial grabbing of the throat, and a subsequent application of pressure to the deceased’s neck or back.
The appeal succeeded, though not on the unanimity ground. The argument that was rejected was that the judge (who happened to be the same judge as conducted the present trial, thereby perhaps explaining her Honour’s concern about this point), should have directed that the jury had to be unanimous as to the act or acts which caused death. It was held that the strength of the expert evidence to the effect that it was the initial act of strangulation that brought about death pointed powerfully towards this ground lacking substance.
However, the Court went further. In a joint judgment, it was stated:
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, a unanimity direction would probably have been necessary.
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.[20]
[20]Ibid [84]–[85] (citations omitted).
The review of the foregoing authorities reveals that, in cases such as this, the Court has applied the principles stated in Walsh. In particular, where the potential causes of the fatal injury were part of one continuous episode, and were not discrete acts or events, a direction is not required to be given to the jury that it must be unanimously satisfied beyond reasonable doubt as to the precise act that caused death. Such a direction is only necessary where, in the context of the facts, the separate potential causes of death could be described as discrete, whether separated as a matter of time or circumstance.
Conclusion re ground one
It is the application of these principles to the facts of this case that requires careful analysis. Of course, what elements in any particular case are essential to criminal liability, and thus require unanimity is, as Elias CJ observed in R v Mead, ‘a practical question, not a technical one’. [21]
[21][2002] 1 NZLR 594, 598 [17].
The CCTV footage in the present case shows that the entire incident, from the commencement of the throw to the delivery of the kicks and stomp, occupied no more than about six seconds. The applicant’s submission that a unanimity direction was required proceeds upon the assumption that, whereas there may have been no murderous intent at the time of the throw, and/or a viable defence of self-defence at that precise moment, murderous intent somehow surfaced in the one or two seconds from the moment Hardy hit the ground, and the delivery of at least the first of the kicks. Alternatively, whereas self-defence might be viable with regard to the throw, it may have been negated when the kicks were delivered.
In that context, the evidence of the witnesses, and the footage on the CCTV, clearly indicates that the whole assault was one continuous episode, with no significant breaks in time. The kicks to the neck, and the stomp on the head, followed immediately upon the slamming to the ground. It is entirely artificial, and indeed almost unreal, to postulate a different state of mind on the part of the applicant within the one sequence of events.
In our opinion, the scenario upon which that submission rests borders on the fanciful. There was simply no evidential foundation for it. The applicant’s defence throughout the trial, at least as to its first limb, was lack of murderous intent from beginning to end. As for self-defence, this seems to us to have rested upon the slimmest of possible foundations, whether with regard to the throw, or the kicks and stomps. In truth, self-defence barely featured as a serious answer to the charge that was brought. The extraordinary viciousness of the attack upon the deceased, from the moment of the throw through to the stomp to the head, makes it inconceivable that the jury could realistically have entertained self-defence as an answer to what the applicant did.
If ever there was a case where it can be said that the offending was part of one continuous sequence, not calling for an artificial deconstruction of the acts going to make up the cause of death, it is this case. What the applicant did to the deceased was done in one series of continuous movements. It is, in that sense, even stronger a case against a unanimity direction than McCarthy, to which we have earlier referred.
In any event, the judge’s charge, in its final form, made it clear to the jury that if they entertained any reasonable doubt about whether the injury had been caused by what her Honour described as the ‘kicking phase of the attack’, if they thought it was a reasonable possibility that the throw to the ground might have caused the injury, or if they simply could not determine which act caused the injury, they could not find the accused guilty of murder unless ‘satisfied beyond reasonable doubt that the murderous intent and the lack of belief in the need for self-defence have been proven to have existed throughout the episode’.
As a matter of logic, that direction ensured that the jury could not have come to a composite verdict of a kind where there had not been unanimity as to both the cause of death, and the existence of murderous intent at the time the fatal injury was inflicted.
When one adds to this trial counsel’s acceptance of the charge in its final form, it becomes clear that ground 1 must fail.
Ground two — provision of incomplete transcript
It is common ground that, on 26 May 2016, after the jury retired to consider their verdict, they requested a transcript of the charge. The trial judge advised the parties that she was in the process of revising it, and that the jury would be given a copy of the charge on the following morning.
The next day, the applicant’s lawyers received an email from her Honour’s associate stating that the revised charge had been provided to the jury that morning. The attached revised copy of the charge did not include 11 pages from the charge as delivered.
A week or so later, after the verdict had been brought in, lawyers for the applicant contacted her Honour’s associate, requesting a copy of the 11 pages of missing transcript. Those ‘missing’ pages were provided. There were three topics missing from the written charge. These were: incriminating conduct, motive and inferences.
The applicant submitted in support of ground 2 that the apparent failure to provide the entirety of the charge to the jury, in response to their request, meant that there had been a serious irregularity of the trial process, and therefore a serious miscarriage of justice.
More specifically, the applicant submitted in support of this ground:
First, the jury was deprived in written form of the relevant principles of law to apply the facts.
Second, a request for a copy of the charge engenders a reasonable assumption that the jury was seeking guidance on the relevant principles of law during the course of their deliberations. That is, although they had received the directions of law orally they required those directions in a written form to assist them.
Third, if an incomplete charge was provided the jury the court has failed to properly respond to a request by the jury in the conduct of their deliberations.
Fourth, the omitted pages from the transcript of the revised charge concerned the central topics of inferences, incriminating conduct and motive. This was especially important, as the mental state of the accused was a central issue in the trial.
Fifth, it is reasonable to assume that the jury, having requested the charge, acted upon the ‘incomplete charge’ in reaching their verdict .
Finally, a ‘taint’ attaches to this verdict because it cannot be said that the jury properly applied the facts to the law. That is contrary to the basic notion that not only must be justice be done, it must be seen to be done.
The respondent did not challenge the applicant’s contention that there were 11 pages missing from the copy of the charge that was sent to his solicitors after the conviction had been recorded. However, it was submitted that even if the jury had not been given those pages, this oversight was of no consequence.
The trial judge had, unquestionably, delivered her charge in full to the jury, including all of the topics dealt with in the 11 missing pages. It was the jury who had asked for a copy of the charge. They were in a position to ask for the missing pages if, in fact, there were such pages omitted from the charge that was provided to the jury.
The particular pages that may have been omitted were pages 752 to 762A. These dealt with three topics, lies told by the accused, motive, and inferences.
The failure to include the direction as to motive (pages 757 to 759) was clearly of no consequence. Motive was not in issue in this trial.
As for the direction regarding lies (pages 752 to 756) it is important to note that her Honour gave careful and detailed directions regarding this topic, to which no exception was, or could be taken. On the 26 May 2016, the day after these directions were given, she referred back to what she had said about lies on the previous day, and gave the jury a short, but accurate summary of the law on this point. That reminder as to what had been said regarding this subject the previous day was included in the transcript of the charge, which was provided to the jury in response to their request. It is scarcely likely, in those circumstances, that they would have forgotten or overlooked the various warnings they were given about how they could, properly, use evidence of the telling of lies as incriminating conduct.
The same can be said of the omission of the passages in the transcript of the charge that dealt with inferences. The trial judge returned to that topic on the following day. She reminded the jury that she had already given them lengthy directions upon the drawing of inferences, and how the benefit of the doubt in that regard had to be given to the applicant. The reminder regarding inferences was itself contained within the transcript that was given to the jury. They could hardly have read what her Honour said without appreciating fully the direction that had been given on the previous day on that topic.
In short, we consider that although the failure to include the whole of the transcript of the charge (assuming that is what occurred) was an irregularity, it did not, in the circumstances of this case, give rise to a miscarriage of justice.
Ground three — failure of trial counsel to elicit evidence regarding rarity of laceration injury
The applicant submitted that it was an important part of the defence case to support the contention, open to the jury by the applicant’s trial counsel, that the cause of death in this case was ‘very rare’.
The argument noted that the applicant’s trial counsel had opened the defence case to the jury, in his defence reply, by asserting that the injury inflicted upon the deceased was ‘very rare’. However, for reasons that were said by the applicant to be ‘inexplicable’, evidence to that effect was not elicited from either Dr Bauer or Dr Iles. This meant that there was no evidence before the Court that the laceration to the vertebral artery was in fact a rare injury.
It was submitted that matters were made worse when the applicant’s trial counsel, in his closing address, repeated his earlier assertion that this injury was a rare thing. He invited the jury to conclude that this was so, on the basis that the prosecution had not sought to disprove his earlier assertion by eliciting evidence to the contrary from its two main expert witnesses.
The prosecutor had, quite rightly, objected to trial counsel’s submission on the basis that there was no evidentiary foundation for the claim of rarity, and had requested the trial judge to correct the matter. Ultimately, her Honour told the jury that there was no evidence that the injury that led to death was rare.
It was submitted that the applicant’s trial counsel’s failure to elicit this evidence, or to call evidence from a potential defence witness, Dr Byron Collins, a forensic pathologist, to that effect had resulted in a substantial miscarriage of justice. There was evidence placed before this Court by affidavit that Dr Collins would have been prepared to say that the injury in this case was rare, and that the reason given by the applicant’s trial counsel for not calling him had to do with misplaced concerns, so it was said, that he might be cross-examined as to matters of credibility.
Dr Collins had provided a report dated 20 May 2015, regarding cause of death. He had reviewed transcripts of the evidence of Dr Bouwer and Dr Iles at the committal hearing, and would have been in a position, so it was said, to speak of the rarity of the fatal injury.
Dr Collins swore an affidavit 15 September 2016, in which he deposed to having attended at the chambers of the applicant’s trial counsel on 22 January 2016. During the course of that meeting they discussed the basic anatomy of the vertebral artery.
Dr Collins once again met with the applicant’s trial counsel in his chambers on 29 January 2016. They discussed mechanisms of causation of traumatic rupture of the vertebral artery. Dr Collins observed that an injury of that kind could arise from relatively minor trauma. He said that he had added that such an injury was ‘comparatively rare’.
Dr Collins went on to say that, on or about 18 May 2016, he had been contacted by one of the applicant’s instructing lawyers and asked about the rarity of laceration of vertebral artery causing or leading to death. Dr Collins then carried out some research into the rarity of that eventuality. On the following day, he advised the lawyer that a lacerated artery was relatively rare as the cause of death in any coronial jurisdiction. He said that he advised that ‘it would certainly be in less than 10 per cent of cases, and probably be in less than 5 per cent of cases’. He told the lawyer that Dr Bouwer, whom he knew, would agree with those percentages if they were put to him.
In an affidavit sworn on 2 September 2016, the principal lawyer of the applicant’s firm of lawyers representing him at trial deposed that he had discussed with his trial counsel Dr Collins’ report, and his availability to give evidence at trial, if required. According to the principal lawyer, trial counsel had indicated to him that, although Dr Collins could give relevant evidence as to the throw being a possible cause of death, and the fact that laceration of the vertebral artery was considered a rare example of trauma, trial counsel did not wish to call Dr Collins to give evidence. The principal lawyer added that he had been:
informed by [trial counsel] and believe that his reason for not wishing to call Dr Collins to give evidence on behalf of the applicant at trial was because of potential credibility issues associated with Dr Collins arising out of Dr Collins’ past.
The applicant submitted that, having regard to Dr Collins’ views as to the rarity of death resulting from a lacerated vertebral artery, trial counsel’s failure to adduce such evidence was wholly inexplicable. He submitted that there was no conceivable rational forensic benefit in not adducing such evidence. Whatever attack may have been made upon Dr Collins, based upon matters of credibility, would not have diminished the importance of this evidence, as to rarity, in advancing the defence case.
It was further submitted that evidence of this kind would have been relevant to the question of murderous intent, given the ‘reasonable possibility’ that death could have resulted from the throw alone. It was submitted that, whether through error or oversight on the part of trial counsel, a substantial miscarriage of justice had occurred.
The respondent, in reply, submitted that whether the laceration of the artery was a rare, or even ‘very rare’, event, and whether it rarely led to death, was completely irrelevant. Evidence of that kind would have had no impact upon whether the attack was delivered with intent to kill, or cause really serious injury. The prosecution were not required to prove that the applicant intended to cause any particular injury, or even that he foresaw that a particular injury might result, still less to prove that he understood the mechanism by which that injury might be sustained.
In any event, so it was said, the decision not to call Dr Collins involved a legitimate, and entirely rational, forensic choice. Dr Collins had indicated that this particular mechanism of death, laceration of the vertebral artery, had been a cause of death in, perhaps, between five and 10 percent of cases, in the coronial setting. Figures of that kind did not make the injury particularly rare. A jury hearing those figures would not be likely to have so concluded. That might have been one reason why Dr Collins was not called to give evidence.
In our opinion, and in accordance with the principles governing a ground of this kind (as set out in Knowles v R)[22] there is no substance to this ground. Whether or not an injury of this kind could properly be described as ‘rare’ bore little, if any, relevance to the central issue of murderous intent. There was nothing to suggest that the applicant would have had any appreciation at all as to the rarity or otherwise of such an injury being sustained, still less causing death. His state of mind, and whether it amounted to murderous intent, had to be ascertained by inference from what the jury could see, on the CCTV, and from any other relevant evidence that cast light upon that issue.
[22][2015] VSCA 141, [127]–[147]. See also R v Birks (1990) 19 NSWLR 677 and TKWJ v The Queen (2002) 212 CLR 124. The issue where incompetence of trial counsel is raised in support of an appeal against conviction is not whether such incompetence, whether flagrant or not, was established, but rather whether there was a substantial miscarriage of justice.
Ground four — use of ‘incriminating conduct’
The applicant noted that the body of evidence, upon which the Crown relied as ‘incriminating conduct’, consisted of his having departed from the scene, and certain lies that he told the police in the course of his record of interview.
It was submitted that, this being so, and there being no issue at trial as to the applicant having caused the death of the deceased, it was incumbent upon the trial judge to direct the jury, with precision, as to how the conduct in question might bear upon whether he had murderous intent, and/or was acting in self-defence. It was submitted that the directions given failed to distinguish between incriminating conduct as to murder (tending to establish murderous intent) and incriminating conduct as to manslaughter, by means of dangerous and unlawful act.
The applicant acknowledged that the incriminating conduct could be used to negate self-defence, and took no issue with her Honour’s directions in that regard. He argued, however, that both his flight, and lies, were equivocal and could not be used to arrive at a finding of murderous intent. Alternatively, he submitted that it was essential that the jury be given a careful direction specifically geared towards the use of the incriminating conduct with regard to that issue, and not merely an acknowledgment of criminal conduct generally.
The applicant relied in that regard upon two cases, R v Nguyen[23] and Butler v The Queen.[24]
[23](2001) 118 A Crim R 479, 489–490 [20] (‘Nguyen’).
[24][2011] VSCA 417, [94] (‘Butler’).
In Nguyen, which was of course decided well before the enactment of the Jury Directions Act 2015, the accused had admitted having shot his wife, but claimed that it was an accident. In particular, he denied any murderous intent. This Court, in dealing with evidence of what was then called ‘consciousness of guilt’ said:
The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without ‘covering lies’, will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards v. R. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realization by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt.[25]
[25](2001) 118 A Crim R 479, 489–490 [20] (citations omitted).
The utility of this passage, in support of the applicant’s submission regarding this ground, is diminished by the fact that it was primarily written in the light of the High Court’s prescriptive decision, in Edwards v The Queen[26] as to how a jury should be directed with regard to post-offence conduct. Edwards is no longer the law in this State, having been legislatively abrogated by the Jury Directions Act.
[26](1993) 178 CLR 193.
In Butler, Ashley JA (with whom Ross AJA agreed),[27] dealing with a submission not altogether different from that which the applicant advanced, said:
Allowing that the jury could infer from Ms Harris’ evidence that T’s body had been disposed of in a violent way over a protracted period, the step of inferring to the criminal standard that this bespoke a killing with murderous intention rather than a killing by a lesser criminal act required the jury’s conclusion about a matter outside common human experience.[28]
[27]Maxwell P dissented on this ground.
[28][2011] VSCA 417, [94].
Butler was an unusual case in that it was a charge of murder where no body had been found. Nothing was known about whether the deceased was dead, still less how his death had come about. There was a large element of speculation associated with the use of post-offence conduct to draw inferences as to murderous intent. In one sense, the post-offence conduct in question in that case could be described as ‘intractably neutral’.
Butler is also but one of a number of cases where similar issues to that raised by this ground have been considered.
In R v Heyes,[29] the accused, together with another, were charged with murder. The killing arose out of an altercation in the course of which the victim was stabbed and struck with a mattock handle. The accused told a series of lies during the course of his record of interview. His defence at trial was a denial of murderous intent, coupled with self-defence and provocation. On appeal, his conviction for murder was quashed. This Court observed that, where the issue was whether the accused killed the deceased with murderous intent, or merely performed an unlawful and dangerous act, evidence of lies would usually be of no assistance in resolving that question. In such circumstances, the accused may have lied because he was conscious of his guilt in having performed an unlawful and dangerous act.
[29](2006) 12 VR 401, 414 [49] (‘Heyes’).
In R v Ciantar, Heyes was overruled by a specially constituted Court of five.[30] The case involved a charge of culpable driving causing death. The accused had failed to stop at the scene of an accident, and his flight and various lies told to police was treated as consciousness of guilt. The Court held that, even allowing that a possible explanation of this post-offence conduct was that he was conscious that he had committed a lesser offence than that charged, it did not follow that such conduct could not be left to the jury as consciousness of guilt.
[30](2006) 16 VR 26, 39 [40] (‘Ciantar’).
In Brooks v The Queen,[31] the appellant had been convicted of the murder of his de facto partner. The appeal concerned post-offence conduct, and the directions given to the jury regarding that matter. The Crown alleged that the appellant had stabbed his partner with murderous intent. The appellant claimed that the deceased had stabbed herself in his presence. The Crown asserted that this version of events was a lie, and the issue on appeal was whether the trial judge had erred in permitting the jury to use the lie (if they found it to be such) as consciousness of guilt. It was further submitted that the trial judge had erred in failing to warn the jury as to the need for care in deciding whether the lie evinced consciousness of guilt of murder, as opposed to unlawful and dangerous act manslaughter. The Court held that the lie in question could not be regarded as ‘intractably neutral’ as between murder and manslaughter. The appeal was dismissed.
[31][2012] VSCA 197.
To the same effect was Flora v The Queen.[32] There, the accused was charged with one count of rape, and one count of intentionally causing injury. The Crown relied upon a body of circumstantial evidence, including post-offence conduct, in support of both charges. It was submitted, on appeal, that the evidence was ‘intractably neutral’, as it might have related to the rape, or the intentionally cause injury. That submission was rejected, the Court concluding that the conduct in question could reasonably be regarded as supporting both charges.
[32](2013) 233 A Crim R 320.
In R v Baden-Clay,[33] the issue was whether certain post-offence conduct had been properly left to the jury on the basis that it supported a conviction for murder, the offence at trial having been that the accused was not responsible for the death of his wife. The Queensland Court of Appeal had quashed the conviction for murder, and substituted a conviction for manslaughter, that being a defence that was never raised at trial. The High Court reversed that decision, and reinstated the conviction for murder. It noted that it had been open to the jury, in the circumstances of that case, to treat the post-offence conduct in question as evidencing murderous intent, rather than merely an unlawful killing, in effect following the reasoning in Ciantar in preference to that in Heyes. The High Court said:
There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder.
[33](2016) 258 CLR 308 (‘Baden-Clay’).
The applicant submitted that, notwithstanding Ciantar, and the later Victorian cases, as well as Baden-Clay, this Court should adopt the approach taken in Butler, whereby the jury should have been warned not to draw the inference of murderous intent, for which the Crown contended, unless satisfied that there was no other explanation for the incriminating conduct, save that the applicant was aware that he had committed murder rather than manslaughter.
The Crown submitted that there was no requirement that the trial judge direct the jury specifically as to murderous intent when charging them as to the use they could make of the applicant’s incriminating conduct. His flight from the scene, and the lies that he subsequently told, were capable of founding an inference that he believed himself to be guilty of murder. At the very least, the incriminating conduct clearly negated self-defence, and was admissible on that basis alone.
Importantly, it was noted that the applicant’s trial counsel did not seek any direction of the kind now said to have been necessary in order to avoid a miscarriage of justice. The applicant’s trial counsel made no mention of the need for any such direction during discussions conducted with the judge pursuant to the Jury Directions Act 2015. Indeed, the directions given by her Honour as to incriminating conduct were essentially the same as those that had been given by Lasry J in the earlier trial, which had resulted in a hung jury. The same trial counsel had also represented the accused at that trial.
The Crown submitted that there was no suggestion that the applicant’s trial counsel had been remiss in failing to ask for a further direction along the lines for which the applicant now contended. Indeed, it was submitted that there were sound forensic reasons for not seeking to highlight the matter of incriminating conduct. Finally, it was submitted that, in the context of this case, incriminating conduct seemed to have been of little significance, the focus of the trial having been upon the CCTV footage, and what the jury could clearly see from that.
In our opinion, the Crown’s submissions should be accepted. No doubt there may be cases where more elaborate directions than those stipulated as mandatory under section 21, or as desirable under section 22 of the Jury Directions Act may be warranted. There will also be some cases where the evidence of post-offence conduct is ‘intractably neutral’ in its truest sense, and such evidence should either be excluded or the subject of special direction. This was not such a case.
It must be remembered that the applicant, having assaulted Hardy, fled from the scene, pushing aside those who sought to have him remain and provide assistance. He later told a series of demonstrable lies regarding the events in question, including having put forward an utterly spurious claim of self-defence. It was well open to the jury to conclude that such post-offence conduct was consistent with his having recognised that he had sought to inflict really serious injury upon the deceased, rather than having merely been involved in an altercation where unintended consequences had occurred. There was nothing ‘intractably neutral’ about the post-offence conduct, and no need for the warning now said to have been indispensable. Proposed ground 4 must therefore be rejected.
Ground five — unsafe and unsatisfactory
As the applicant correctly noted, the question for this Court under this proposed ground is, whether upon the whole of the evidence, the jury should, or perhaps even must, have had a reasonable doubt about the applicant’s guilt.[34]
[34]M v The Queen (1994) 181 CLR 487, 494; R v Klamo (2008) 18 VR 644, [38]–[40]; and Libke v The Queen (2007) 230 CLR 559, 596–7; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14].
Plainly, it is insufficient to demonstrate that there was evidence which might have been taken by the jury to be sufficient to preclude satisfaction of guilt beyond reasonable doubt. The question is, was it properly open to the jury to be satisfied of the applicant’s guilt of murder.
As previously indicated, there were two main issues in the trial. First, whether the applicant had murderous intent at the time he brought about the death of the deceased. Secondly, whether he was acting in lawful self-defence.
It is important to note that the applicant’s submission in support of ground five does not contend that the jury had to find that he acted in self-defence. As we have said, self-defence was barely fit to be left for consideration, and the jury were well entitled to reject it almost out of hand.
As regards murderous intent, the CCTV footage, taken alone, answers this ground. The members of this Court were in as good a position as the jury to view the actions of the applicant, as depicted in that footage, and having seen it on a number of occasions, we are entirely satisfied that the inference is inescapable that the applicant, in doing what he did, intended at the least to cause really serious injury.
The footage shows the applicant grabbing the deceased with both hands and, using his own body as leverage, hurling him head first to the ground. Within perhaps two or three seconds, at most, the applicant inflicts three forceful kicks to the head and neck of the deceased, in quick succession. He then stomps, violently, on the deceased’s head. This was a powerful and compelling case of murder.
Accordingly, when one combines the CCTV evidence with the rest of the evidence taken as a whole, it becomes clear that, far from being unsafe or unsatisfactory, this verdict was entirely appropriate. Having considered the evidence as a whole, as we are required to do, we are satisfied beyond reasonable doubt of murderous intent. There is no substance to proposed ground 5.
Sentence
Submissions re manifest excess
The sole ground of appeal in relation to sentence is one of manifest excess. The particulars upon which that ground relies include remorse, exceptional work history, family support and good prospects of rehabilitation.
The applicant’s written case begins by submitting that, on any view of the facts, and objectively speaking, this was not a serious example of the crime of murder. That submission is supported by a number of observations regarding the character of the offending, including its short duration and the fact that it was not premeditated. As the sentencing judge characterised it, the crime involved a ‘moment of madness’.
The respondent, on the other hand, noted that the applicant, having stood his trial, was not entitled to a discount for a plea of guilty. He had previously been dealt with for an offence involving violence, having pleaded guilty to recklessly causing injury and criminal damage. That offending arose from an assault on a crowd controller at a pub, the applicant having been refused re-entry because it was closing. He had become aggressive toward security, kicking and punching the victim, who sustained minor injuries.
The respondent acknowledged that there was some indication of remorse, the applicant having offered to plead guilty to manslaughter. However, it was submitted that such remorse was of limited weight.
Conclusion re sentence
The attack upon the deceased was brutal and senseless, involving as it did a severe beating of a defenceless young man who had done nothing to warrant such treatment. After the attack, the applicant left the scene without any regard for his victim, or showing the slightest concern for his well-being.
The sentencing judge rightly rejected the submission that this was one of the ‘lowest levels of murder’. To argue, as the applicant has, that this was not a ‘serious’ case of murder, is a bold submission, and one which we have no hesitation in rejecting.
The sentence of 20 years’ imprisonment with a non-parole period of 16 years, for an offender who has stood his trial, and exhibited only limited remorse at best, is clearly within range. We would refuse leave to appeal against sentence.
It follows that leave to appeal against both conviction and sentence must be refused.
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