Lorke v The Queen

Case [2019] SASCFC 147

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

LORKE v THE QUEEN

[2019] SASCFC 147

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)

22 November 2019

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED - VERDICT NOT UNREASONABLE - GENERALLY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE

On 13 September 2017, Skeyhill was working with his employer and friend, Rollond. They finished work early and drank a large amount of beer before going to Skeyhill’s property at around 10.00 pm. A confrontation occurred in which Lorke stabbed Skeyhill with a large knife. Lorke was convicted of murder.

Lorke and Skeyhill had had recent disputes which culminated in a physical fight on the Sunday prior to the death. Skeyhill had seen on Lorke’s property what appeared to be an SKS assault rifle but was in fact a replica airgun. It appears that Skeyhill then installed cameras but none were located during police searches.

Held, per Peek J (Doyle and Nicholson JJ agreeing), dismissing the appeal:

1. As to Ground 1 (Unreasonable verdict): It was open to the jury to conclude that the defences upon which Lorke relied were each disproven by the prosecution beyond a reasonable doubt. Criminal Law Consolidation Act 1935 (SA) (CLCA) s 15 discussed. M v The Queen (1994) 181 CLR 487; Mule v The Queen (2005) 79 ALJR 1573 considered.

2.  As to Grounds 2 and 2A: The Judge’s directions correctly removed from the jury’s consideration the prosecution theory that Lorke had “stolen” camera(s) and hence had premeditation; they also made clear that the determination of the facts, including as to Rollond’s reliability and credibility, was a matter for the jury. The decision not to ask for further directions was consistent with the action of competent counsel. There was no miscarriage of justice.

3. As to Ground 3: Evidence concerning the replica airgun was admissible since Lorke was carrying it during the stabbing incident and agreed facts made clear that Skeyhill’s earlier sighting had not been of a real SKS assault rifle. Evidence Act 1929 (SA) s 34 R was not engaged. The Judge was justified in taking the view that further directions as to impermissible use of the evidence would have been contrary to Lorke’s best interests and the action of defence counsel in not requesting such directions was consistent with the action of competent counsel. R v Soteriou (2013) 118 SASR 119; Police v Rosales [2017] SASC 118; R v Fleming; R v Maher (2017) 129 SASR 27; R v Jones [2018] SASCFC 96

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AGLC
Lorke v The Queen [2019] SASCFC 147
Case
[2019] SASCFC 147
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Lorke against his conviction for a stabbing offence. The appeal was heard by Peek, Nicholson and Doyle JJ. The dispute arose from an incident where Lorke was alleged to have stabbed Skeyhill, resulting in Skeyhill's death. Evidence was presented regarding the events leading up to and immediately following the stabbing, including the consumption of alcohol by Skeyhill and another witness, Rollond, and Skeyhill's expressed concern about a "gun" on Lorke's property.

The legal issues before the court included whether the jury's verdict was against the weight of the evidence, and whether there had been a misdirection or non-direction by the trial judge in his summing up to the jury. Specifically, the appeal raised questions about the judge's directions concerning the removal of cameras from Skeyhill's property, and whether these directions adequately addressed the defence's contention that Rollond, rather than Lorke, may have removed them. The court also considered whether the evidence supported the jury's conclusion that the defences relied upon by Lorke had been disproven beyond reasonable doubt.

The court reasoned that the trial judge's directions regarding the cameras, while suggesting uncertainty about who removed them, were a legitimate forensic choice by senior counsel. This approach aimed to prevent the jury from inferring premeditation on Lorke's part, thereby preserving the core defence of a reaction to sudden and unexpected events. The judge had repeatedly emphasised that the determination of facts was solely within the jury's province. The court found that the evidence, including expert testimony on the wounds and circumstantial evidence, was sufficient for the jury to conclude that Lorke's defences were disproven and that the prosecution had proven its case beyond reasonable doubt. The nature and severity of the wounds were considered consistent with an intention to kill.

The court rejected the grounds of appeal. It was satisfied that the evidence was suitable for jury trial and that the jury was in a good position to assess the credibility of witnesses and the significance of the conflicting evidence. The court concluded that it was open to the jury to reach the verdict they did, finding that Lorke had taken a deadly weapon with uncertain intention and used it in circumstances where he should not have, or in a disproportionate manner.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Three persons who were present in the area at the time of the stabbing on the night of 13 September 2017 gave evidence, to which I now turn. The evidence of Philip Rollond Prior to his death, Skeyhill had been a wool classer. On Wednesday, 13 September 2017, he worked at a shearing shed with, amongst others, his friend and employer, Philip Rollond (Rollond) who was a shearing contractor. Rollond gave the following evidence. On that day, he and Skeyhill worked until between 2.00 pm and 3.30 pm when they ceased because the sheep were wet. They commenced drinking in the shearing shed, each consuming between three and four stubbies of beer, before moving to the Mannum Hotel where they each consumed between three and six schooners of beer. They then moved to the Palmer Hotel where they consumed more beer; while there, Skeyhill suggested that they should return to his property and check the cameras because he had been concerned about the “gun” he had seen on Lorke’s property. Rollond then drove them back to Skeyhill’s house. On the drive back, he stopped the vehicle to urinate, during which time Skeyhill smoked some cannabis. Rollond testified that he and Skeyhill arrived at Skeyhill’s property at about 10.00 pm. Only the two of them were present. Skeyhill observed something in his yard and said, “The cunt’s in my backyard”. He then stepped out of the vehicle and crossed the fence into Lorke’s property. Rollond, who was at that stage still in his vehicle, could not see anyone else. As Skeyhill crossed the fence, he was saying, “What were you doing in my yard?” Rollond testified that by the time he got out of the vehicle, he could not see to whom Skeyhill had been talking or whether he was still talking to anyone. He described the scene as quiet. Rollond crossed the fence into Lorke’s property and shortly came upon Skeyhill who was on the ground wounded with Lorke standing next to him holding a knife in his right hand. Rollond testified that he took a swipe at Lorke and made contact with something, causing exacerbation of an injury he had sustained to his hand a few days prior. He then knelt down and looked at Skeyhill, observed blood coming out of Skeyhill’s mouth and telephoned triple zero. Rollond’s two triple zero conversations It is agreed that Rollond telephoned triple zero at 10.22 pm on 13 September 2017.[3] In that conversation, Rollond informed the operator that there had been a “[p]retty serious” stabbing and said (while standing near to Skeyhill in the presence of Lorke), “this cunt’s got a knife on top of, standing on top of this bloke”. He further said that he “just got threatened he was going to stab me…”. [3] Agreed Fact 26. During the conversation which followed, Rollond was asked multiple times for an address. He gave evidence that he was not aware of the number of the property and that he went to the front roadway to find out. Rollond also made various statements that local police in Tungkillo were “fucking useless”. He instructed the triple zero operator that he was on the main road in Tungkillo and eventually requested the attendance of “the detectives”.

Decision

Reasons for decision

Dr Heath gave evidence in relation to each of the wounds described above and stated that they were consistent with having been caused by something with a sharp edge such as a knife. It was open to the jury to conclude that the nature and severity of the wounds inflicted by Lorke were more in keeping with an intention to kill rather than any other intention.Conclusion as to Ground 1 of appeal In my view, the evidence in this case entirely consisted of non-technical factual matters, pre-eminently suitable to jury trial. No additional evidence was presented to this Court. The twelve jurors were in a very good position to assess matters, common to mankind, such as intoxication and antipathy towards police officers and to weigh up the true significance of conflict as between the evidence of Rollond and the Burtons (always bearing in mind that neither Rollond nor the two Burtons ever claimed to have seen the actual stabbing). And, of course, it was for the jurors to consider as men and women of the world whether what Lorke said in the aftermath of the stabbing (taking into account that he was not cross-examined in Court[19]) was co-operative, consistent and accurate as the defence would have it or ingratiating, inconsistent and disingenuous as the prosecution would contend. [19] Mule v The Queen (2005) 79 ALJR 1573. Distilled to its core elements, this case involves a situation, sadly not uncommon, where a person had decided to take a deadly weapon with him with then uncertain intention (perhaps “just in case”) and ultimately uses it in circumstances that happen to arise wherein he should not use it at all, or the mode of use is disproportionate.[20] When all of the circumstantial evidence here is considered as a whole, I am satisfied that it was open to the jury to conclude that the defences upon which Lorke relied were each disproven by the prosecution, and that the prosecution proved its case beyond reasonable doubt. I reject Ground 1 of Appeal. [20] The respective two limbs of s 15(1) of the CLCA. Grounds 2 and 2A of Appeal – The ‘disappearance’ of the camera(s) During the trial and summing up there was reference to “cameras” possibly having been installed by Skeyhill. Given that police never recovered any cameras (except for one which appeared to be still in its original packaging), it is not possible to know how many cameras, if any, were in fact installed. In light of this ambiguity in the evidence, I will use the term “camera(s)”. The contrasting prosecution and defence cases at trial concerning camera(s) At trial, the prosecution mounted a positive case that camera(s) had been deployed by Skeyhill and that they were removed by Lorke prior to Skeyhill’s death as part of a plan to have it out with Skeyhill in a confrontation in which Lorke would be suitably armed and which, in his view, would be better not filmed. The defence actively resisted that theory, contending first, that the prosecution were not able to prove that any camera(s) were actually deployed and, second that even if camera(s) had been deployed, they must have had been removed by Rollond.

Ratio Decidendi

Legal Principle Established

Later in his summing up, the Judge directed the jury thus: Ladies and gentlemen, he [defence counsel] then addressed you on the question of the stolen cameras. He put a submission that it might have been Mr Rollond. The prosecution put a suggestion it might have been the accused. As I have said, it is a matter for you. My suggestion is we do not know and there is very little evidence on the topic. Consideration Those directions satisfied the main defence concern that it might be inferred by the jury that Lorke had “stolen” camera(s) with the inference of premeditation that that connoted. Senior counsel elected not to complain of that direction or to suggest a further direction on the camera(s) topic. I consider that this was an understandable and legitimate forensic choice. If the above directions were to be “opened up” by further directions as to who took the camera(s), then, while the defence wished to nominate Rollond for that role, what was to stop the jury from electing Lorke? Competent counsel would likely have thought that it was best to get rid of the spectre of a deliberate plan made by Lorke well before the stabbing incident and thereby to protect and preserve the core defence case of a man reacting to sudden and unexpected events who should not be judged too harshly for what he did in such a situation. It is also important to note two further matters. First, the Judge made it very clear throughout his summing up, and particularly in the context presently under discussion, that the determination of the facts was entirely the jury’s province and that he was offering a suggestion only. Thus, his Honour, at the commencement of his summing up, directed the jury in the following terms: Contrary to my summing on the law [sic], where you must take my directions, you alone are the judges of the facts. That is most important. Being the judges of the facts includes the ultimate question as to whether the accused is guilty or not guilty of any offence. I will be commenting on the facts and as I have said, I will be trying to summarise them for you and put them in some sort of order and I may be able to help you by drawing your attention to some of the more relevant facts. However, you must understand that it is not by role to try and influence you in any way. Trial by jury is not a meaningless phrase. You are the judges of the facts, not me. If I say anything about the facts with which you disagree, ignore entirely what I say and proceed upon your own good judgment. However, I hasten to add that I will certainly not be trying to influence you. My task is to make things as coherent and logical as possible and assist you in coming to a decision. When the Judge dealt with the camera(s) evidence, his Honour suggested that “there is not enough evidence to really come to a conclusion about that”. However, such comments were prefaced by noting that “this is a matter for you”, the jury. Again, in a later passage of the summing up in which the camera(s) was addressed, the Judge stated:Ladies and gentlemen, he [defence counsel] then addressed you on the question of the stolen cameras. He put a submission that it might have been Mr Rollond. The prosecution put a suggestion it might have been the accused. As I have said, it is a matter for you. My suggestion is we do not know and there is very little evidence on the topic.