R v Batterbee

[1997] QCA 9

IN THE COURT OF APPEAL	[1997] QCA 009
SUPREME COURT OF QUEENSLAND

C.A. No. 497 of 1996.

Brisbane

[R v. Batterbee]

T H E Q U E E N

v.

DAVID CARL BATTERBEE

Appellant

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Fitzgerald P.
Davies J.A.

Fryberg J.

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Judgment delivered 21 February 1997

Judgment of the Court

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APPEAL DISMISSED

CATCHWORDS:	CRIMINAL LAW - appeal against conviction - murder - meaning
of "intention".
Counsel:	Mr M Griffin for the appellant. Mr D Meredith for the respondent.
Solicitors:	Legal Aid Office for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	11 February 1997.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 February 1997

The appellant appeals against his conviction on 17 October last of the murder of Monica Skye Chandler, a child of about 19 months, on 2 December 1995. Monica was the child of Jennifer Louise Atkin with whom the appellant had been living in a de-facto relationship since February 1995.

At about 6pm on the night in question Ms Atkin left Monica in the care of the appellant while she went to a Kentucky Fried Chicken shop to purchase some takeaway dinner. She returned a short time later and, before she entered the house, heard two "thuds". When she entered she saw the child on the floor and the appellant standing over her clapping. He then picked her up and took her into the bedroom, returning shortly cradling the child in his arms and indicating that there was something wrong with her. Ms Atkin observed that the child’s eyes had rolled back into her head. When questioned as to what had happened to the child the appellant made no reply. The child was rushed to hospital but died shortly afterwards.

Examination of the child revealed serious injuries to her of two kinds. The first consisted of haemorrhaging to the back of her eyes which, according to a specialist ophthalmologist, showed that she had been severely shaken before she sustained the injuries to which I am about to refer. The second consisted of severe head injuries including fractures, diastasis, subarachnoid haemorrhage and bruising to the brain. According to a pathologist who examined her, this injury was consistent with the child having been thrown against a hard surface.

The appellant did not give evidence at his trial. However he was interviewed by the police on two occasions. On the first of these he denied injuring the child. On the second, which was recorded on audio and video tape, he said that he became upset with the child’s crying and threw her onto the bed in the bedroom. The bed was against the wall and he said that, although he threw her onto the bed, she also hit the wall and it was presumably this which caused her injuries. The version which the appellant gave was said by the pathologist to whom I have referred to be inconsistent with the injuries which he observed. He said it would not supply enough force.

Although counsel for the appellant’s submissions commenced on a wider basis,
during the course of oral argument he accepted that it was open to the jury to conclude:

1. That the appellant shook the child severely and then threw her against a hard surface, probably either the wall or the floor; and

2. That when he shook the child and when he threw the child he intended to harm In the light of those concessions the first ground of appeal, which was that the verdict of the jury was unsafe and unsatisfactory, focused on the absence of sufficient evidence on which the jury could reasonably have concluded that the appellant’s intention, including as it did one to harm the child, went so far as to include an intention to cause death or grievous bodily harm.

her.

In support of this submission the appellant sought to rely upon that part of the appellant’s statement to the police which indicated increasing frustration, anger and loss of control. Even in the appellant’s statement there was not a great deal which supported this. In any event, as was pointed out during the course of argument, this detracted from rather than supported the argument that the intent to cause harm did not include an intent to cause grievous bodily harm. Moreover, once it is accepted that the jury could reasonably have inferred an intent to cause harm, the severity of the trauma which must have caused the head injuries - being thrown against a hard surface - left it reasonably open to them to infer that the intention was one to cause death or grievous bodily harm.

This ground of appeal must therefore fail.

The second ground of appeal, which was added by leave at the hearing, asserted that the trial judge had misdirected the jury in relation to the element of intent. No redirection had been sought in respect of this below as Mr Griffin, who was counsel here and below, frankly conceded. During the course of a redirection the learned trial judge said, with respect to intent, that the prosecution must prove beyond a reasonable doubt "that when he did the acts, he understood . . . that what he was doing would kill her or would do her grievous bodily harm".

It may be accepted that the word "intends" in s. 302 is a plain English word which needs no elaboration and that it is generally unwise for judges directing juries on the question of intent to attempt to explain what it means or to find synonyms for it. In this case, however, if what the learned trial judge said amounted to a misdirection, it was one which favoured the appellant. It was not necessary to prove he understood that death or grievous bodily harm would occur. In no sense could it be said, on the conceded facts to which I have already referred, that proof of an understanding that either of these consequences would occur imposed a lesser burden on the prosecution than proof of an intention to cause them.

This ground must therefore also fail and the appeal should be dismissed.