Milosevic v The Queen - [2022] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MILOSEVIC v THE QUEEN
[2022] SASCA 38
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Livesey and the Honourable Justice Bleby)
27 April 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - RECKLESSNESS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY
Following a trial by jury, the appellant was convicted of the murder of his housemate.
At trial, the prosecution alleged that the appellant had committed five acts of violence against the deceased over a period of three to four hours, including, inter alia, dropping a wheelie bin on his head twice (“fourth act of violence”). The appellant gave evidence at trial; he admitted the first three acts of violence but denied his involvement in the final two.
It was the prosecution case at trial that the appellant, in the course of committing the five acts of violence alleged, intended to kill or at least inflict grievous bodily harm upon the deceased. At the request of the prosecution, the Trial Judge directed the jury on the elements of reckless murder and left reckless murder to the jury as an alternative pathway to guilt for murder.
The appellant appeals his conviction on three grounds: first, that the Trial Judge erred in leaving reckless murder to the jury; second, that the Trial Judge failed to relate the directions on recklessness to the evidence at trial; and third, that the Trial Judge misdirected the jury by ascribing undue prominence to the use of the wheelie bin by the appellant in the fourth act of violence.
Held, by the Court, granting permission to appeal on Ground 2, but dismissing the appeal:
1.The Trial Judge did not err in leaving reckless murder to the jury. Further, the Trial Judge’s directions on the difference between murder and manslaughter by an unlawful and dangerous act were appropriate.
2.The Trial Judge appropriately directed the jury on the evidence at trial relating to reckless murder.
3.The Trial Judge did not misdirect the jury by ascribing undue prominence to the “wheelie bin” incident.

Aubrey v The Queen (2017) 260 CLR 305; JGS v The Queen [2020] SASCFC 48; La Fontaine v The Queen (1976) 136 CLR 62; Nudd v The Queen (2006) 80 ALJR 614; Pemble v The Queen (1971) 124 CLR 107; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Barrett (2007) 16 VR 240; R v Cooke (1985) 39 SASR 225; R v Crabbe (1985) 156 CLR 464; R v Sergi [1974] VR 1; R v TY (2006) 12 VR 557, considered.

MILOSEVIC v THE QUEEN
[2022] SASCA 38

Court of Appeal – Criminal: Lovell, Livesey and Bleby JJA
THE COURT:
On his arraignment before a jury on the charge of murdering his housemate Mr Danny Barber (the deceased), Mr Nikola Milosevic (the appellant), pleaded not guilty to murder but guilty to manslaughter. At the request of the prosecution, the Trial Judge, during his jury directions, left “reckless murder” as a potential pathway to guilt for murder. The jury rejected the appellant’s plea to manslaughter and convicted him of murder. The appellant appeals the verdict on the grounds that:
1. the Learned Trial Judge erred in leaving reckless murder to the jury;
2. the Learned Trial Judge failed to relate the directions on recklessness to the evidence in the trial; and
3.the Learned Trial Judge misdirected the jury by ascribing undue prominence to the use of a wheelie bin by the appellant.
We would dismiss the appeal; our reasons follow.
Background
The appellant and the deceased lived in shared accommodation in Plympton with three other men. On 22 August 2019, the appellant had been living at the premises for about four years; the deceased had been residing there for a longer period.
The prosecution case was that the appellant struck the deceased to the head and body in five separate acts of violence with the intention to at least inflict grievous bodily harm upon him. The five separate acts of violence against the deceased occurred over a period of approximately three to four hours, from approximately 10.30 pm on 22 August 2019 to the early hours of 23 August 2019. The five acts of violence were punctuated by periods of inaction. The cause of death could not be attributed to any one particular act, but rather to the cumulative effect of injuries sustained from one or more of the five acts.
The appellant gave evidence admitting the first three episodes of violence, but denied being involved at all in the last two acts of violence. He denied intending to kill the deceased or cause him grievous bodily harm. The appellant conceded that his admitted acts were a substantial cause of the deceased’s death.
The five alleged acts of violence
On 22 August 2019, the deceased smashed a window in the appellant’s bedroom by throwing a pot plant through it. He then pinned a note to the appellant’s door with a knife. The note read “You delusional fuckwit. Play like you’re asleep and I’ll put a fuckin axe through your head”. Upon returning home to the broken window and note, the appellant went to the deceased’s bedroom and assaulted him (“first act of violence”). The circumstances of that assault were in dispute at trial. The prosecution case was that the appellant kicked the deceased in the head while he was laying in his bed. The appellant, in evidence, said that the deceased tried to stab him with a knife and that he disarmed the deceased by delivering several ‘karate’ kicks to his head area.
Approximately one to two hours later that evening, the deceased was in the backyard and was heard cursing. The appellant gave evidence that the deceased was smashing his car windows with a cargo barrier, before moving towards him and hitting him with it. The appellant admitted that, using a baseball bat, he hit the deceased about 10 to 15 times in the legs (“second act of violence”). During the assault, the deceased allegedly said “Harder. Harder”. Approximately 20 minutes later, the appellant threw a bicycle on the deceased (“third act of violence”), and returned to the house.
Between 45 minutes to an hour after the third act of violence, the prosecution alleged that the appellant picked up and dropped a wheelie bin on deceased’s head twice (“fourth act of violence”), before kicking him in the head once more (“fifth act of violence”). On the prosecution case, about 15 minutes earlier, the appellant said words to the effect of “I’m going to put him to sleep. I’ve had enough”, to a witness. The appellant denied the fourth and fifth acts of violence.
It was not put to the appellant that he inflicted any other blows to the deceased after those with the baseball bat and wheelie bin.
Dr Langlois’ evidence
Dr Langlois, a qualified forensic pathologist, conducted the post-mortem on the deceased. His qualifications were not challenged.
The deceased suffered many injuries to his head and other parts of his body, particularly the right leg. Some injuries to his head were likely to be caused by blunt force trauma of moderate force. The deceased also suffered a broken jaw likely to have been caused by blunt force trauma of moderate to severe force. He also suffered a broken ankle caused by the application of severe force.
It is possible that blunt force was applied to one area a number of times, but it is also possible for one impact to cause more than one injury. Given those uncertainties, Dr Langlois considered that the deceased sustained no less than four blows to the head. Further, the deceased suffered an acceleration/deceleration injury to his brain. The pathological changes noted in the brain were consistent with a mild brain injury. It was noted that it might not have been obvious to someone else that the deceased had sustained a brain injury.
Dr Langlois observed foreign material in the deceased’s airway. Whilst foreign material in the airway is a relatively common finding at post-mortem, the amount of such material in the air spaces in the lungs was particularly extensive in the upper and lower lobes of both lungs. Dr Langlois considered that the material was likely gastric contents that had “refluxed” or come up from the stomach and then had been actively inhaled by the deceased while he was still alive. The inhaling of the stomach contents prevented the deceased’s lungs from working, therefore obstructing his breathing. The degree of aspiration involving the upper and lower lobes of both lungs would have impaired the deceased’s breathing to such a degree that death would have been rapid.
Toxicology tests revealed that the deceased had a blood alcohol reading of 0.21% at post-mortem, and an estimated 0.22% at the time of death. Dr Langlois considered this to be a high reading and a risk factor in aspiration. Testing also revealed that the deceased had ingested methylamphetamine, codeine, Mirtazapine (an anti-depressant) and paracetamol. At the levels detected, the ingestion of those drugs was considered to be non-toxic.
Dr Langlois did not consider that death was caused by alcohol intoxication alone; he had rarely seen such a degree of aspiration at an alcohol concentration of 0.21%. Given the degree of aspiration noted, Dr Langlois said he would have expected to see a much higher concentration of alcohol in the blood.
Dr Langlois opined that the cause of death was blunt force head injuries complicated by acute aspiration in a man with a blood alcohol of 0.21%. He considered that the aspiration occurred after the blunt force head injury.
The prosecution, in relation to the fourth incident involving the wheelie bin, focussed attention on what Dr Langlois described as a “horizontal 6 cm laceration across the midline 1.5 cm superior to the bridge of the nose on the forehead leading to an undermining/flap laceration of skin superiorly 4 cm over frontal bone”. Dr Langlois considered that this injury was caused by blunt force trauma as the skin was split or torn due to force but “not due to a cutting implement”. The blow had split the skin causing it to separate from the bone. However, as skin does not adhere to bone, it separates from bone easily. Of the injuries to the head area, Dr Langlois considered that the injury described above was consistent with having been caused by force from the base of the wheelie bin.
Dr Langlois accepted the possibility that the brain injury alone may not have led to death. He accepted the possibility that the brain injury may have occurred if the deceased tripped and fell backwards hitting his head. He also accepted that if the deceased’s head was on the ground and the wheelie bin dropped on his head, a brain injury would not necessarily occur.
Appellant’s evidence
The appellant gave evidence. He said that the deceased was a difficult man who could become violent and angry. Leading up to August 2019, the deceased blamed him for problems with the internet. He became increasingly irritable and violent, particularly towards him. The deceased, about two months before his death, punched the appellant in the face fracturing his eye socket.
The appellant admitted that he had taken methylamphetamine and cannabis in the afternoon of the day before the deceased was killed.
After returning home and finding his window broken and a note pinned to the door, the appellant said that he went to the deceased’s room. He said that the deceased had a knife and had attempted to stab him. He kicked the deceased in the head about five or six times. The deceased dropped the knife. The appellant took the knife and left the room. He left the knife on a table near the laundry door. The appellant admitted that he later hit the deceased in the legs with a baseball bat about 10 to 15 times. He denied dropping the wheelie bin on the deceased’s head. The appellant denied any intention to seriously hurt the deceased, although he agreed that he knew that to kick someone in the head would seriously hurt them.
Ground 1: Did the Trial Judge err in leaving reckless murder to the jury?
The real issues raised by this ground of appeal are whether there is a perceptible risk that the jury convicted the appellant on less than proof beyond reasonable doubt as to the elements of murder, and as such whether a miscarriage of justice has occurred, as the appellant alleges:
·it was unnecessary to leave reckless murder to the jury; and
·having left reckless murder, the Trial Judge did not adequately distinguish the mental element of reckless murder from that for manslaughter by an unlawful and dangerous act or acts.
It was common ground that on appeal that in South Australia a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.[1] This concept is commonly expressed as “reckless murder”. That is, a person who foresees death or grievous bodily harm as a consequence of his or her conduct is said to be reckless as to those consequences. For an accused to be convicted of common law murder, it is necessary for the prosecution to prove at least that the accused foresaw the probability — as opposed to the possibility — of death or grievous bodily harm.[2] The reason for requiring foresight of probability is the “near moral equivalence of intention to kill or cause grievous bodily harm and the foresight of the probability of death”.[3]
[1]     R v Crabbe (1985) 156 CLR 464 at 469–470.
[2]     Aubrey v The Queen (2017) 260 CLR 305 at [45].
[3]     Aubreyv The Queen (2017) 260 CLR 305 at [47].
The prosecution case at trial was that the appellant, when assaulting the deceased as alleged, intended to kill the deceased or at least inflict grievous bodily harm. At trial, the prosecution requested the Trial Judge to direct the jury on the elements of reckless murder and leave reckless murder to the jury as an alternative pathway to guilt. The appellant objected to the Trial Judge adopting that course of action. Over the objection of the appellant, the Trial Judge directed the jury on the elements of reckless murder. Neither counsel during their closing addresses made mention of the concept of reckless murder. Neither counsel, at the conclusion of the Trial Judge’s summing up, requested any further directions be given on the topic of reckless murder.
Appellant’s submissions
Mr Mead SC, counsel for the appellant, accepts that the Trial Judge correctly directed the jury on the elements of reckless murder. However, he submits that reckless murder should not have, on the facts of this case, been left as an alternative. Mr Mead submits that the prosecution case focussed on the intention of the appellant, namely that he had at least the intention to cause the deceased grievous bodily harm, and that at no time was a factual basis for reckless murder put forward. The first time the jury heard the concept of reckless murder was during the Trial Judge’s summing up. That is, he submits, it was not a practical issue at trial and there was no, or very little, material before the jury that raised the issue.
While Mr Mead submits that reckless murder should not have been left to the jury, the main focus of this ground is the failure of the Trial Judge when directing the jury, to specifically draw their attention to the difference between reckless murder and manslaughter by an unlawful and dangerous act or acts.
For reckless murder, the jury must be satisfied that the accused knew that it was probable that death or grievous bodily harm would be the consequence of his act or acts. That is a subjective test requiring the jury to consider the appellant’s state of mind and not that of a “reasonable person”. To prove manslaughter by an unlawful and dangerous act or acts, the prosecution need to prove that the act or acts causing death were dangerous. Whether an act is dangerous is determined objectively. That is, an act is dangerous if a reasonable person in the appellant’s position would have realised that it was probable that death or grievous bodily harm would result from that act.
Mr Mead submits, that in the context of the issues at trial, there was a potential for confusion between the subjective mental element for reckless murder and the objective test involved in manslaughter by an unlawful and dangerous act or acts. As a result of this potential for confusion, the Trial Judge was required to specifically contrast the two cases when explaining the difference to the jury. The purpose of such a direction, Mr Mead submits, was to ensure a jury, when considering the elements of reckless murder, did not conclude that the appellant foresaw that his actions would cause death or grievous bodily harm because a reasonable person would have appreciated the risk. Mr Mead relies on the observations of Barwick CJ in Pemble v The Queen (“Pemble”)[4] and the Victorian Court of Appeal in R v TY (“TY”)[5] and R v Barrett (“Barrett”)[6] to support his submission. In Barrett, Eames JA stated:[7]
As Buchanan JA noted in TY, the danger of confusion between the mental element required for reckless murder and that required for manslaughter by unlawful and dangerous act was such that the judge ought to have expressly drawn the attention of the jury to that distinction. He held:
… The jury should have been warned not to conclude that the applicant foresaw the probability of death or really serious injury because they thought a reasonable man would have appreciated the same danger.
(citations omitted)
[4] Pemble v The Queen (1971) 124 CLR 107.
[5] (2006) 12 VR 557.
[6] (2007) 16 VR 240.
[7] (2007) 16 VR 240 at [59].
While Mr Mead accepts that the Trial Judge’s directions on the elements of reckless murder and manslaughter by an unlawful and dangerous act or acts were correct, it was unnecessary, he submits, for the Trial Judge to have introduced the concept of reckless murder. When summing up, the Trial Judge did not contrast the two concepts; his directions on manslaughter did not follow directly upon his directions for reckless murder. Mr Mead submits that having introduced the concept of reckless murder, the Trial Judge was obliged to warn the jury as to the danger of confusion.
Respondent’s submissions
The Director of Public Prosecutions, Mr Hinton QC, accepts that the authorities establish that reckless murder should only be left to the jury where the facts of the case are such as to make it a “practical issue”.[8] The reason for caution, particularly where manslaughter by an unlawful and dangerous act or acts is an alternative verdict, is the danger that the jury, having been directed on the mental element for reckless murder and manslaughter, reason that the accused foresaw the probable consequence of his conduct because the ordinary person in the position of the accused would have foreseen the probable consequence of such action, rather than applying the appropriate subjective test. That is, the danger lies in the jury potentially failing to appreciate that, for reckless murder, the mental element requires proof that the accused actually adverted to the consequence as being probable and proceeded to act causing death after doing so.
[8] La Fontaine v The Queen (1976) 136 CLR 62; R v Sergi [1974] VR 1; R v Cooke (1985) 39 SASR 225.
Mr Hinton submits that reckless murder was, on the facts, a practical issue between the parties. He submits that at trial, the prosecution, as outlined earlier in these reasons, alleged that the appellant was involved in five separate acts of violence. While the appellant admitted in his evidence that he inflicted the blows the subject of the first three incidents of violence, he denied inflicting the blows the subject of incidents four and five as alleged by the prosecution. During his address to the jury, counsel for the appellant submitted that the jury should have a reasonable doubt about the appellant’s involvement in incidents four and five and consider the case only based on what the appellant admitted in relation to the first three incidents of violence. Mr Hinton submits that if the jury accepted that submission, and looked at only the admitted episodes of violence, reckless murder was clearly an issue. Given the complexities surrounding the cause of death, it was open for a jury to find that the appellant possessed a different state of mind for each incident. In those circumstances, he submits, the Trial Judge’s decision to leave reckless murder was correct.

Further, Mr Hinton submits that whether or not reckless murder was a practical issue, the Trial Judge’s directions would nonetheless have operated to prevent any perceptible risk of the jury making the error of reasoning that the accused foresaw the probable consequence of his conduct because the ordinary person in the position of the accused would have foreseen the probable consequence of such action, rather than applying the appropriate subjective test to which the authorities refer. To put that another way, the Trial Judge’s directions on the mental element of reckless murder were appropriate such that the jury would have understood that the prosecution had to prove that the accused actually adverted to the consequence as being probable, and proceeded to act causing death after doing so. Considering all of the directions on the topic, Mr Hinton submits that there is no perceptible risk that a miscarriage of justice has occurred.
Discussion
A trial judge should not leave reckless murder for a jury’s consideration unless there is material in the case to warrant the giving of a verdict on the footing of it.[9] Reckless murder should only be left to the jury where the facts of the case are such as to make it a “practical issue”.[10] A trial judge must take care to examine the evidence and satisfy himself or herself that the evidence could support a conclusion that the accused acted with reckless indifference.[11]
[9] La Fontaine v The Queen (1976) 136 CLR 62, 69 (per Barwick CJ); R v Barrett (2007) 16 VR 240; R v TY [2006] VSCA 113.
[10] La Fontaine v The Queen (1976) 136 CLR 62, 64; R v Sergi [1974] VR 1; R v Cooke (1985) 39 SASR 225.
[11] Pemble v The Queen (1971) 124 CLR 107, 118 (per Barwick CJ).
The prosecution, at trial, contended that the evidence established that the appellant intended, when he inflicted violence on the deceased, to kill him or inflict grievous bodily harm. It is important to bear in mind, however, that the cause of death could not be attributed to any one act but was likely to be the result of the cumulative effect of the injuries sustained from up to five episodes of violence occurring over approximately a two-hour period. It was open to the jury to find that the appellant possessed a different state of mind at the time of each incident of violence.
At trial, although the prosecution contended that the appellant committed all five acts of violence, the appellant argued that he was not involved in incidents four or five. The appellant submitted that the jury could not be satisfied beyond a reasonable doubt that he was involved in incidents four and five and that they should therefore consider his culpability only on what occurred in incidents one, two and three. Such an approach underpinned the appellant’s submission to the jury that he was only guilty of manslaughter.
While it was open to the jury to find that the appellant, at least, intended to inflict grievous bodily harm on the deceased during the first three incidents alleged, if the jury were satisfied that he only participated in the first three, both manslaughter and reckless murder verdicts were open. This is particularly so given that the first three incidents themselves were separated by significant periods of time.
Neither prosecuting counsel nor the appellant’s counsel addressed the jury on the concept of reckless murder. Both were aware by the time of their addresses that, at the request of the prosecution, the Trial Judge had agreed to leave reckless murder to the jury for their consideration.
The appellant admitted that he committed the first three acts of violence, although the extent of the violence inflicted was a contested issue. However, the appellant did accept that what violence he did inflict was a substantial cause of the deceased’s death. The appellant denied being involved in the fourth and fifth incidents.
If the jury accepted beyond a reasonable doubt that the appellant was involved in only the first three acts of violence, it was open for them to find that he intended to inflict at least grievous bodily harm on the deceased. However, it was also open to them to find that the appellant knew that it was probable that his acts would cause grievous bodily harm or death, even though he did not possess that specific intention.
Assuming that reckless murder is left to the jury to consider, there is a danger that the jury may conclude that an accused contemplated death or really serious injury as a probable consequence of his or her actions because they thought that was what a reasonable person or the jury themselves, would foresee.[12] As Buchanan JA (Warren CJ and Vincent JA agreeing) observed in TY:[13]
The danger to which resort to the concept of reckless murder gives rise is that the jury may conclude that the accused contemplated death or really serious injury as a probable consequence of his or her actions because they thought that was what a reasonable man, or the jury themselves, would foresee. In Pemble v R Barwick, CJ warned against the ease with which the lay mind could pass from inadvertent negligence to advertent negligence and said:
The state of mind of the accused is rarely so exhibited as to enable it to be directly observed. Its reckless quality if that quality relevantly exists must almost invariably be a matter of inference. Although what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards a conclusion as to the accused’s actual state of mind, a firm emphasis on the latter as the facts to be found by the jury is necessary to ensure that they do not make the mistake of treating what they think a reasonable man’s reaction would be in the circumstances as decisive of the accused’s state of mind. They need also to be reminded that the accused’s circumstances are relevant to the decision as to his state of mind; for example his age and background, educational and social, his current emotional state and his state of sobriety. They should be expressly told that they need to be satisfied beyond any reasonable doubt that he must have foreseen, and in that sense did foresee, the consequences of the act he contemplated.
(citations omitted)
[12] Pemble v R (1971) 124 CLR 107, 120 (per Barwick CJ); R v TY (2006) 12 VR 557 at [15].
[13] (2006) 12 VR 557 at [15].
In Barrett,[14] Eames JA (Maxwell P and Harbersberger AJA agreeing) observed that the danger of confusion between the mental element required for reckless murder and that required for manslaughter by an unlawful and dangerous act or acts was such that a trial judge should expressly draw the attention of the jury to that distinction. Justice Eames adopted the reasoning of Buchanan JA in TY that the jury “should have been warned not to conclude that the appellant foresaw the probability of death or really serious injury because they thought a reasonable man would have appreciated the same danger”.[15]
[14] (2007) 16 VR 240.
[15] (2007) 16 VR 240 at [59].
While precision in the definition of the elements of both offences is necessary, no particular form of words is required. However, the jury requires sufficient clarification of the issue mentioned to avoid the perceptible risk of a miscarriage of justice.
It is necessary to consider the Trial Judge’s directions in the matter.
The Trial Judge, when he turned to direct on the elements of the offences, handed the jury an aide memoire. The aide memoire set out the elements of the offences. No complaint is made about the accuracy of the directions on the elements. The jury had the advantage of taking the aide memoire with them into the jury room when they retired to consider their verdict.
Having distributed the aide memoire, the Trial Judge took the jury through its contents. On the question of the specific intent to murder, the Trial Judge said:
At the time the defendant did such act or acts he had a specific intention either to kill the deceased or to cause him grievous bodily harm (that is, really serious bodily harm) or was reckless as to the causing of death or grievous bodily harm. (A person will be reckless as to causing death or grievous bodily harm if he does an act knowing that it is probable that death or grievous bodily harm will result and death in fact results).
The Trial Judge, having directed on the contents of the aide memoire stated:
So you can see then the layout is I am giving you in brief overview, as it were, the four elements of murder but indicating that I will say more in relation to certain aspects of them as we go through the document. You will remember that earlier in the trial I told you that all four elements must be proven and that the first three elements of murder are exactly the same as the first three elements of the lesser alternative charge of unlawful and dangerous act.
The Trial Judge then dealt with the first three elements of murder. He then turned the fourth element. He stated:
As to element four, however, this element of murder is of course quite different to the fourth element of manslaughter and of course this element of murder is hotly disputed by the defendant.
It is necessary to prove beyond reasonable doubt that at the time that the defendant inflicted one or more blows upon the deceased, he actually had the required specific intent for the offence of murder; namely, to kill or inflict grievous bodily harm. So the question will be as to whether you are prepared to infer that particular intention from his actions at that time, and I have already said something about how you go about drawing inferences in a criminal case.
I simply emphasise here that you have got to contrast actually establishing by inference that he did have the specific intent for murder on the one hand and the very different and lesser requirement that would suffice for a conviction of murder, that I will come to shortly. That is to say, an unlawful and dangerous act in the fourth element of manslaughter.
That lesser requirement is not good enough for murder. For a conviction of murder you must be satisfied beyond reasonable doubt that the defendant himself actually intended to kill or to inflict grievous bodily harm or was reckless thereto, and I will direct you to what ‘reckless’ means shortly. And therein lies the most important difference between murder and manslaughter.
(emphasis added)
The Trial Judge then turned to the next two topics mentioned in his aide memoire namely causation and contemporaneity. He then returned to the question of the requirement of recklessness (as an alternative to a specific intent to kill or inflict grievous bodily harm). He directed in terms of the aide memoire which included:
Recklessness will be established only if the defendant does an act or acts, knowing at the time that it is probable that death or grievous bodily harm will result; and death in fact results. Recklessness concerns the accused’s actual state of mind. It is not enough that you, or ‘a reasonable person’, would have realised that death or grievous bodily harm would probably result. Recklessness will only be proven if the defendant himself actually realised that death or grievous bodily harm would probably result, and proceeded to do the act or acts regardless.
(emphasis added)
Having directed the jury in terms of the aide memoire the Trial Judge then explained the concept further. He stated:
To establish recklessness, as that doctrine requires, the prosecution have to prove that the defendant actually adverted to the fact that it was probable that death or grievous bodily harm would ensue but proceeded to do the act or acts and a death ensued.
… and that would be a matter of inference for you but it is a question of whether he himself knows that it is probable that death or grievous bodily harm will result, and a death in fact does result, well that would be recklessness murder.
… But it is all a question of distinguishing from mere carelessness or negligence a situation of recklessness, which is “I appreciate that if I do this it is probable that it is going to cause a death or grievous bodily harm but I don’t care, I’m going to do it anyway”.
(emphasis added)
The Trial Judge then immediately turned to the directions on manslaughter by an unlawful and dangerous act or acts. He directed the jury in terms of the aide memoire and then elaborated. He stated:
Now, just to speak to that page, you can easily flip back to p.1 and you can see that the first three elements of murder set out at p.1 are exactly the same as the first three elements of manslaughter as set out at p.5. So, it is really to focus your attention on the differing fourth element. So back at p.1 on murder, I talk to you about the specific intention to kill or cause grievous bodily harm, to which you can add ‘reckless’ in the very confined sense that I have stressed.
Of course, if you are not satisfied of that high hurdle for murder, then the fourth element of manslaughter presents a lower hurdle, as you can see when you read it, back to p.5. What you have got there is the act or acts of the defendant which caused the death of the deceased were dangerous and that simply means if a reasonable person in the defendant’s position would have realised that his actions would have exposed the deceased to an appreciable risk of injury.
But, you see, it is not saying that the defendant himself realised that, it’s rather that a reasonable person, and you can decide for yourself what a reasonable person would be in society, but a reasonable person would have realised that his actions would have exposed the deceased to it an appreciable risk of serious injury. So you can see that the fourth element is quite different, whereas the first three elements are identical.
(emphasis added)
The Trial Judge, as set out earlier in these reasons, had already alerted the jury to the difference between the fourth element for murder and the fourth element for manslaughter, having also told the jury that this was the element that was “hotly disputed”.
The directions, taken as a whole, clearly distinguished for the jury the difference between the mental element required for reckless murder and that required for manslaughter by unlawful and dangerous act or acts. The Trial Judge, when directing the jury on the concept of recklessness, clearly stated that “it is not enough that you, or a reasonable person, would have realised that death or grievous bodily harm would probably result”. Recklessness, he directed, will only be proven if the defendant himself actually realised “that death or grievous bodily harm would probably result”. When directing on manslaughter, the Trial Judge repeated the distinction with particular reference back to the difference between the fourth element of murder and the fourth element of manslaughter.
The Trial Judge’s directions on the mental element of reckless murder were appropriate. The jury would have understood that the prosecution had to prove that the appellant actually adverted to the consequence as being probable and proceeded to act causing death after doing so. The directions made plain the distinction between the mental element required for reckless murder and the objective test for manslaughter by an unlawful and dangerous act or acts. Considering all of the directions on the topic, there is no perceptible risk that a miscarriage of justice has occurred.
We would dismiss the ground of appeal.
Ground 2: The Trial Judge failed to relate the direction on reckless murder to the evidence.
This ground of appeal is cast in wide terms. Arguably the appellant’s submissions on this ground were wider still. However, the respondent did not object and met the appellant’s submissions. The appellant’s written submissions contend that the Trial Judge did not:
1.relate his directions on reckless murder to the evidence;
2.direct the jury as to the relevance of intoxication to the question of recklessness;
3.direct the jury that, in his evidence, Professor White used the word reckless in a non-legal sense;
4.direct the jury that the deceased’s behaviour and response to the appellant’s initial assault could have impacted upon the intoxicated appellant’s formation of the requisite mental element; and
5.direct the jury that Dr Langlois’ evidence of the brain injury sustained by the deceased could have been caused by the deceased falling backwards to the ground and striking his head, and that, if that were a reasonable possibility, that this injury was not caused by the direct action of the appellant and this would need to be taken into account in determining whether he had actual knowledge or foresight of inflicting grievous bodily harm.
This ground of appeal is framed against the appellant’s complaint that the Trial Judge should not have left reckless murder to the jury and the complaint that the Trial Judge’s directions did not adequately address the danger of leaving reckless murder. Those complaints have been dismissed. To put that another way, this ground of appeal is to be assessed against our finding that the Trial Judge adequately addressed the danger of a jury being confused about the differing elements of reckless murder and manslaughter by an unlawful and dangerous act or acts.
Further, we note that no complaint is made about the Trial Judge’s directions on the issue of the appellant’s state of mind, specifically, whether he had a specific intent to kill or cause grievous bodily harm. The premise of the appellant’s submissions under this ground is that, in directing the jury on the mental state of the appellant, the Trial Judge was required to give substantially more directions in relation to reckless murder than he did with regard to the question of intent to kill or cause grievous bodily harm. To put that another way, the appellant submits that the Trial Judge, having left reckless murder to the jury, placed the appellant at risk of being convicted for murder upon a basis that the jury might not have completely understood without further directions. The failure to give those further directions, it is submitted, has led to a miscarriage of justice.
It is convenient to deal with particulars 1, 2 and 4 together.
The appellant submits that the Trial Judge failed to direct the jury on how the appellant’s intoxicated state might have affected his ability to appreciate the probable consequences of his actions. The appellant contends that the jury were simply told that they should take into account “any intoxication by drugs at the relevant time when considering recklessness”. The appellant submits that the Trial Judge, when dealing with the question of intoxication, did not assist the jury with the difference between a sober person’s ability to appreciate certain relevant facts with that of an intoxicated person. The appellant’s submissions are based on the Trial Judge’s direction when he directed on the elements of murder.
We do not accept the appellant’s submissions, as they fail to have regard to the whole of the Trial Judge’s summing up. As the respondent submits, the Trial Judge said much more to the jury. The respondent submits that it is necessary to consider what the Trial Judge said about the topic and then assess whether what was said was sufficient to avoid a miscarriage of justice.
The evidence established that the appellant had consumed methylamphetamine and cannabis but not alcohol. Having directed the jury on the topic of drawing inferences, the Trial Judge turned to the question of intoxication and its relevance to the jury’s assessment of witnesses including the appellant. The Trial Judge stated:
Now, I move onto the next topic that I want to say something generally about and that is the topic of intoxication. It has got various strands in this case. It bears upon whether a person formed a particular intent. It bears upon whether a person appreciated certain matters or perceived things correctly. It bears upon the correct drawing of correct inferences concerning mental intent. I will try to explain what I mean by that.
Of course, the word ‘intoxication’ used to be used, I will not say exclusively, but largely in the context of alcohol, however in the present case I’m using it to mean a deleterious effect upon mental processes produced by the taking of alcohol, or drugs, or a combination of both. Intoxication is not restricted to alcohol, although in years gone by that was the usual context.
(emphasis added)

The Trial Judge directed the jury on the effect intoxication may have on a person’s ability to perceive what is happening, and also the extent to which it may have deleterious effect on memory and later recall of events. He then turned specifically to the appellant’s association with illicit drugs. Having warned the jury not to reason that simply because the appellant had taken drugs that somehow he was a “bad person” or that he was more likely to have committed the present crime of murder, he stated:
Secondly, you must consider the bearing of intoxication of the defendant by reference to illicit drugs on the question of whether the defendant actually formed an intent to kill, or to inflict grievous bodily harm, or for the purposes of recklessness as to which I will be directing you.
The third aspect of intoxication in relation to the defendant is that you must address the question of whether such intoxication may have affected his ability to correctly perceive events happening around him and to correctly reason during the period leading up to the death of the deceased and that will bear upon certain partial defences to which I will be shortly turning.
(emphasis added)
Having directed the jury that it was often the case that there was no direct evidence of what an accused was thinking or intending, the Trial Judge directed:
So you need to look at the surrounding circumstances and decide whether you are satisfied beyond reasonable doubt that the accused did have the required specific intent of murder, and in making that assessment you take into account all of the facts that you find to be established. That will include any evidence of words spoken by the accused and of course his acts and associated behaviour.
(emphasis added)
In addition to these particular directions, the Trial Judge set out in detail the five alleged episodes of violence and directed the jury on causation and contemporaneity.
Later in the summing up, the Trial Judge dealt with the evidence of Professor White. Professor White is an emeritus Professor of Pharmacology. He gave evidence about the effect of drugs on the human body. His evidence was not challenged. The Trial Judge dealt with his evidence in considerable detail. It was clearly relevant to the question of the appellant’s state of mind at various times and the jury would have understood its relevance.
Professor White dealt with the effects of both alcohol (relevant to the deceased) and methylamphetamine. Analysis of a blood sample taken from the appellant revealed he had ingested methylamphetamine, cannabis and Valium. The Trial Judge discussed, in considerable detail, Professor White’s evidence.
The Trial Judge then stated:
I will give you this direction in terms of drawing inferences as to a person’s intention when you have to factor into account the issue of potential intoxication. Let me put it like this, I will start with a sober person, all right. So you are considering the mental intent of a sober individual who is charged with intentionally causing serious injuries. Well, now, you would not just assume that because it is proven that a man caused injuries he intended to do that. If you have got to prove that he intended to do it you just do not assume he did, you look at the situation. Did it really come about by accident, for example? Was he just not paying attention and he caused this accident because he was not paying attention? Or, on the other hand, was it not an accident all but that it was something that he intentionally brought about? Those are the things you might be asked to consider in a situation where it is necessary for the prosecution to prove a certain intent accompanying an action and you have got a sober person.
Now, it becomes, you can see, the more layered or difficult if you have got this aspect of intoxication then intruding into the situation. Now, one question is whether in this situation the defendant was under the effect of methylamphetamine such that although the acts were deliberate, deliberate swings of the baseball bat, it is not just an accidental hit, it is deliberate swings, right, deliberate swings of the baseball bat for example, but did he intend to bring about injuries by doing that?
Now, you might say with a sober person those quite forceful repeated swings by a baseball bat against a person’s legs and, indeed on the prosecution case and the expert evidence of Dr Langlois that extended to some of the injuries on the arms as well, you might in a sober person infer, well, yes, we think that he did intend injuries in the situation. You may come to that situation here despite the fact that he has got some methylamphetamine aboard, but you’ve got to take that into account before you do, you do not just assume things. You take into account the matters concerning intoxication and there is a bit of cannabis there as well, but I’m just going to be saying methylamphetamine, you can understand I bring the cannabis in there as well, you take that into account.
Put in similar words, when considering whether the fourth element of murder as referred to in the jury memo — you have that, you know what that is — is proven you should take into account the level of intoxication by methylamphetamine and/or cannabis when considering what inferences can safely be drawn as to his actual intention.
(emphasis added)
We have already, when considering Ground 1, set out the directions on reckless murder. The oral directions and the aide memoire made it plain that recklessness was a state of mind and that the jury had to be satisfied beyond a reasonable doubt that the appellant possessed such a state of mind and realised that death or grievous bodily harm would probably result from his actions. The directions made it clear that the jury must be satisfied beyond reasonable doubt that the appellant actually adverted to the fact that it was probable that death or grievous bodily harm would follow from the blow or blows that the jury found the appellant inflicted.
The respondent submits that it is “inconceivable” that in considering recklessness:
[T]he jury would not have had regard to the evidence of the five episodes of violence, the evidence of the deceased’s injuries and the cause of death, and the Judge’s directions about the assessing of witnesses, drawing inferences, intoxication, the use to be made of the appellant’s plea, memory, motive, expert evidence, the deceased’s response to the appellant, and the appellant’s admissions and lies.
Against that background, it can be said that the direction from the Trial Judge was only in summary form. The aide memoire contained the following direction which the Trial Judge read to the jury:
When considering recklessness, the jury should take into account all of the evidence concerning the defendant including his age; his educational and social background; his emotional state and any intoxication by drugs at the relevant time; and the whole of his evidence given in court.
The summing up, taken in its entirety, appropriately directed the jury as to the evidence that the jury were entitled to consider in relation to the issue of recklessness. The Trial Judge appropriately instructed the jury on the question of intoxication and its relevance to the appellant’s mental state.
We would dismiss these particulars of Ground 2.
The appellant further submits that the Trial Judge failed to direct the jury as to the fact that Professor White, when giving evidence used term reckless in a “non-legal” sense. During his summary of Professor White’s evidence, the Trial Judge stated:
Professor White told us in terms of the effects of methylamphetamine and, and here it was delivered by smoking we understand, there can be a range of pronounced effects including adverse ones. The person may become agitated physically and mentally, their speech may be faster than usual, their behaviour may be disorganised and erratic, self-confidence may become exaggerated to the point where the person does risky, or reckless, or impulsive actions, the person may feel that nothing may harm them.
The Trial Judge earlier, when directing on the question of recklessness stated:
Ladies and gentlemen, I will just add to that by saying that a most important thing here to emphasise is that while the term ‘reckless’ or ‘recklessness’ might be used all sorts of different ways in common parlance, we are here using the term ‘recklessness’ only in one very precise way. That is to say referring to a particular legal doctrine. So you cannot, as it were, import what you or others might mean in general terms by recklessness. It is a matter of looking at the legal requirements of the doctrine, which is simply referred to in the shorthand term of ‘recklessness’ but depends upon those particular aspects of the doctrine being fulfilled.
While in our view it is clear from the context of the Trial Judge’s summary of Professor White’s evidence that Professor White was not using the term reckless in anything other than a non-legal sense, the above direction made that clear to the jury. No further direction was required.
We reject the appellant’s submissions on this point.
Finally, under Ground 2 the appellant submits that the Trial Judge was required to direct the jury that Dr Langlois’ evidence about the brain injury sustained by the deceased could have been caused by the deceased falling backwards to the ground and striking his head. If it was a reasonable possibility that this injury was not caused by the direct action of the appellant, the jury would need to take this into account when considering whether the appellant had actual knowledge or foresight of inflicting grievous bodily harm. This fact, taken in conjunction with other aspects of the deceased’s behaviour was relevant, it is submitted, to the question of the appellant’s actual knowledge or foresight of the probability of inflicting grievous bodily harm.
The Trial Judge, when summing up to the jury, dealt with the issue of the mechanism of the deceased’s brain injury in some detail. Further, the Trial Judge not only highlighted the appellant’s cross-examination of Dr Langlois, he summarised the points made by the appellant’s counsel during his address. This included emphasising the appellant’s submission that he (the appellant) “would not have known that the injury to the brain or any fatal injury having been suffered during those episodes”. The Trial Judge made clear the appellant’s position on the forensic pathologist’s evidence. There was no need for a further direction.
Before turning to Ground 3, we note that the appellant at trial did not seek any additional directions as said now to have been required. Issues argued on appeal need to be considered in the context of the manner in which the trial was conducted. Decisions, for example, such as not objecting to evidence, not asking for specific directions and pursuing, or not pursuing, a particular line of defence are part of the wide discretion that counsel exercises at trial.[16] For example, the absence of a request to the Trial Judge to consider giving himself various directions affords some practical indication of their relevance to the issues at trial.[17] Thus, while there are exceptions, an appellant is generally bound by the case he or she ran at trial.[18] In this matter there were clear forensic advantages in the appellant not seeking further directions. While it is not determinative of the appeal, the decision not to seek further directions does afford a practical indication of the relevance of these matters to the appellant’s case at trial.
[16] Nudd v The Queen (2006) 80 ALJR 614.
[17] Perara-Cathcart v The Queen (2017) 260 CLR 595 at [60] (per Kiefel, Bell and Keane JJ).
[18] Nudd v The Queen (2006) 80 ALJR 614; JGS v The Queen [2020] SASCFC 48.
We would grant permission to appeal on Ground 2 and dismiss this ground.
Ground 3: The Trial Judge misdirected the jury in ascribing undue prominence to the fourth incident
The appellant submits that the Trial Judge misdirected the jury by ascribing undue prominence to the fourth incident involving the wheelie bin.
It is important to understand the forensic contest relating to this incident. Between 45 minutes to an hour after the third act of violence referred to earlier in these reasons, the prosecution alleged that the appellant picked up and dropped a wheelie bin on the deceased’s head twice, before kicking him in the head once more (the fifth act of violence). On the prosecution case, the appellant told a witness around 15 minutes earlier “I’m going to put him to sleep. I’ve had enough”. The appellant denied the fourth act of violence involving the wheelie bin. He also denied the fifth act of violence.
The witness, Mr Donovan Walker, gave evidence on the topic. He stated that the appellant, in using the wheelie bin, “looked like he put it down on [the deceased’s] head”. Walker said he used “a little bit of force, like pushed it down on his head”. The evidence of the pathologist Dr Langlois was that a laceration he noted on the forehead of the deceased could have been caused by use of the wheelie bin. That injury would have required moderate force. Dr Langlois also stated that the dropping of the bin on the deceased’s head would not necessarily cause a brain injury because:
[T]he type of brain injury in this case is typical of, as I said, an acceleration/deceleration injury when the skull and the brain move and come to a stop or when they are stationary and suddenly made to move. So were a person lying flat on the ground with their head on a hard surface and then have an impact, although that can tear the skin, because the head doesn’t move, there may be no associated brain injury.
The prosecution case was that the appellant was involved in all five alleged acts of violence. The prosecution could not and did not point to any one act as being causative of death; it relied on all five acts not just to prove the injuries but also to prove the intent of the appellant. Mr Van Beusichem’s evidence that the appellant, shortly before using the wheelie bin, said “I’m going to put him to sleep. I’ve had enough”, was clearly relevant to the question of the appellant’s state of mind.
Mr Mead submits that, given Dr Langlois’ evidence about the type of brain injury suffered by the deceased, the wheelie bin incident was not particularly important. He submits that the emphasis the Trial Judge placed on the incident carried with it the implication that the injuries caused by the wheelie bin were significant on the issue of the cause of death. Mr Mead submits that the Trial Judge’s directions, and the emphasis he gave to the wheelie bin may have misled the jury as to the cause of death thereby leading to perceptible risk of a miscarriage of justice.
We reject these submissions. First, assuming the appellant hit the accused with the wheelie bin, Dr Langlois did not say that the incident did not contribute at all to the brain injury. When cross-examined at trial, Dr Langlois accepted that if the wheelie bin was dropped on the deceased’s head “the brain injury would not necessarily occur in that situation”. However, that answer needs to be considered in the context of his evidence generally.
Dr Langlois opined that his findings on autopsy indicated “trauma to the brain, blunt force trauma or more generally what we call acceleration, deceleration injury”. He further stated:
How do we know it is blunt force? We have external injuries: fracture of the jaw, injury of the forehead, there is a bruising injury of the cheek and the eye. All of these things indicate that there has been blunt force trauma to the head itself externally and putting it altogether indicates blunt force trauma to the head affecting the brain.
The injury to the forehead mentioned is a reference to the injury likely to have been caused by the wheelie bin. While Dr Langlois did accept that the brain injury was more consistent with an acceleration/deceleration injury rather than the wheelie bin being dropped on the deceased head, he did not say that whatever caused the injury to the forehead of the deceased could not have caused the brain injury. Dr Langlois opined that it was not possible to determine how many injuries occurred to the brain. He was unable to tell whether there “has been one event or a combination of multiple events”.
It was open to the jury on Dr Langlois’ evidence to find that if the accused dropped the wheelie bin on the deceased’s head, that action may have contributed to the brain injury suffered by the deceased.
Secondly, the prosecution relied on the evidence of the appellant’s use of the wheelie bin, taken in conjunction with the evidence of his statement that he was going to “put him [the deceased] to sleep”, as evidence going to the appellant’s state of mind. It was clearly relevant for that purpose.
The issue was contested at trial. The Trial Judge was obliged to put the parties’ respective cases to the jury. This he did, and he did so with the direction that the facts were for them to decide and that they could ignore anything that he said about the facts with which they disagreed.
No further direction was sought on this issue before the jury retired to consider their verdict. The Trial Judge’s directions on this issue were appropriate.
We would dismiss this ground.
Orders
We make the following orders:
1. Permission to appeal is granted on Ground 2.
2. The appeal is dismissed.