R v Brougham

Case [2014] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v BROUGHAM

Criminal Trial by Judge Alone

[2014] SASC 196

Reasons for the Verdict of The Honourable Justice Sulan

17 December 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER

Bevan John Brougham was charged with the murder of Dianne Rogan on 11 July 2013 in Whyalla.  He elected to be tried by Judge alone.  The accused and deceased were involved in a sexual relationship.  On the night of 11 July 2013 the accused visited the deceased.  Both consumed a large amount of alcohol.  The following morning the deceased was found lying naked in the backyard of her home.  The deceased suffered serious injuries to her face and head and suffered multiple broken ribs resulting in a flail chest.  The prosecution case was that the accused inflicted multiple injuries to the deceased.  The defence case was that the injuries causing the deceased's death were accidental and resulted from her falling and being dropped accidentally when the accused was attempting to assist her.

Held:

(1)  the accused assaulted the deceased which substantially contributed to her death;

(2)  the accused did not have the requisite specific intent to kill the deceased or cause her grievous bodily harm at the time;

(3) the accused caused the death of the deceased by an act or acts that were unlawful and dangerous.

The accused is acquitted of murder.

The accused is found guilty of manslaughter.

Criminal Law Consolidation Act 1935 (SA) s 268, referred to.
R v Dolan (1992) 58 SASR 501; R v Wingfield (1994) 176 LSJS 14; Royall v The Queen (1990) 172 CLR 378; R v Hallett [1969] SASR 141; Wilson v The Queen (1991-1992) 174 CLR 313; R v Wills (1983) 2 VR 201, applied.
R v Besim (2004) 148 A Crim R 28., discussed.
Gibson v Ellis (1992) 59 SASR 420; R v Webb & Hay (1992) 59 SASR 563; R v Gardiner [2013] SASCFC 53; Campbell v R [1981] WAR 286, considered.

R v BROUGHAM
[2014] SASC 196

Criminal

  1. SULAN J: On the morning of Friday, 12 July 2013, the deceased, Dianne Rogan, was discovered lying naked in the garden of her home at 69 Sharp Street, Whyalla.

    On Monday, 15 July 2013, the accused, Bevan John Brougham, was charged with her murder. 

    The accused has pleaded not guilty.  The accused elected to be tried by Judge alone.

    Directions of law

    Presumption of innocence

  2. The accused is presumed innocent.  He cannot be convicted of the offence or a lesser offence unless and until I am satisfied that each element of the charge, or a lesser charge, has been proved beyond reasonable doubt.

    Elements of the offence

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Details
AGLC
R v Brougham [2014] SASC 196
Case
[2014] SASC 196
Decision Date

CaseChat Overview and Summary

The case of R v Brougham involved a dispute over the death of a woman and the criminal liability of the accused, Brougham, who was charged with murder. The case was heard in a higher court in Australia, which reviewed the trial court’s decision. The primary legal issues the court had to decide were whether Brougham had the requisite intent to commit murder, whether the actions leading to the woman's death could be considered manslaughter if the intent to kill or cause grievous bodily harm was not proven, and whether intoxication could be a mitigating factor in his criminal liability. Additionally, the court had to consider the reliability of the circumstantial evidence and the credibility of the accused's testimony.

The court thoroughly examined the evidence presented, including the testimonies of expert witnesses and the accused. It found that the accused had lied to the police, but this alone did not establish guilt. The court determined that the deceased had consumed a significant amount of alcohol, and there was no direct evidence of an assault. However, the court concluded that the accused’s actions, specifically the application of CPR, likely caused the fatal injuries to the deceased. The court found that the accused must have realised that his actions would expose the deceased to a risk of serious harm, which made his actions dangerous. The injuries were severe and would have been obvious to a reasonable person in the accused’s position, indicating that the accused had the necessary intent for murder.

After weighing all the evidence, the court found that the accused had the intent to cause grievous bodily harm, which was sufficient for a murder conviction. The court rejected the accused's claim that the injuries were accidental or resulted from the deceased's own actions. The court held that the accused's intoxication was not a defence to the charge of murder as it did not negate the requisite intent. Consequently, the court found the accused guilty of murder. The court then proceeded to detail the final orders, which included the sentencing of the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the act or acts which caused the death of the deceased were caused by the accused, but it has not been proved beyond reasonable doubt that those acts were inflicted with the intention to kill or cause grievous bodily harm, then a verdict of manslaughter could be returned, if the following elements are proved beyond reasonable doubt:1The accused killed the deceased.2That the act or acts causing the death of the deceased were unlawful.3That the act or acts causing the death of the deceased were dangerous. An act is dangerous for this purpose if a reasonable person, in the position of the accused, would have realised his or her actions would expose the deceased to appreciable risk of serious harm.Accused has given evidence The accused gave evidence. I direct myself that, in considering the accused’s evidence, I should give him credit for giving evidence and subjecting himself to cross-examination. I should consider his evidence in the same way as I must consider the evidence of all witnesses. In assessing the evidence of the witnesses, including the accused, I have had regard to their demeanour. I have considered their evidence in the context of other evidence in the case. I have considered their evidence under cross‑examination and applied my judgment to the evidence. I note that I can believe or disbelieve, rely or not rely upon all or part of a witness’s and the accused’s evidence.Circumstantial case The case presented by the prosecution to prove that the accused committed the offence charged is based on circumstantial evidence. There is no direct evidence that establishes that he assaulted the deceased thereby causing her death. The accused gave evidence that the injuries suffered by the deceased, details of which I will particularise later, were as a result of her accidentally falling on a number of occasions including whilst he was attempting to save her. I direct myself that, in order to find the accused guilty, I must exclude beyond reasonable doubt any hypothesis consistent with his innocence. If I reject the evidence or any part of the evidence given by the accused, I must consider whether the facts as I find them to have been established prove beyond reasonable doubt that the accused is guilty of any offence. I direct myself that all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an hypothesis consistent with innocence reasonably open on the evidence.Expert witnesses I direct myself about the expert witnesses. They are Professor Roger Byard, Dr Sunethra Devika Thomas, Dr Sonya Van Pittius and Dr Helen James. The evidence of the expert witnesses must be considered together with the evidence of other witnesses and with the agreed facts. Ultimately, I must determine what of their evidence I accept, what weight is to be given to it and any inferences and conclusions that arise from the evidence.Lies In this case, there is undisputed evidence that the accused lied to the police about the events on the evening of 11 July 2013. Counsel for the prosecution submits that I should conclude that the accused lied out of consciousness of guilt. I will detail the statements made by the accused later in these reasons.

Decision

Reasons for decision

I remind myself that in rejecting the accused’s evidence as to crucial matters does not establish that he is guilty of any offence. In rejecting his evidence I cannot draw an inference or conclusion that the accused must therefore be guilty of any crime. I am required to consider all the evidence to determine whether I am satisfied beyond reasonable doubt that the crime charged or any other crime has been committed. Factual conclusions I find that the deceased had consumed a significant amount of alcohol on the night of her death. Professor Byard stated, and I am satisfied, that the deceased’s blood alcohol level at the time of her death was 0.34 per cent. The deceased was observed by Mr Ayling and Anne Rosewarne prior to 6.30 pm on the evening of her death soon after she had left her workplace. She had no observable injuries. I conclude that the deceased consumed a large amount of alcohol between 6.30 pm and the time of her death. I accept the evidence of Mr Rogan and find that the process of preparing the dog food would take up to three hours and that the deceased would typically finish around 10:30 pm to 11 pm. The deceased did not commence preparing the dog food prior to around 6.30 pm. I conclude that the accused arrived at the deceased’s home some time after 7 pm. I conclude that the deceased and the accused did not enter the spa until later in the evening. The deceased and the accused continued to consume red wine whilst in the spa. I conclude that the accused also consumed a significant quantity of alcohol on the night of the deceased’s death. His evidence was that he consumed eight bottles of beer and two whiskeys prior to going to the deceased’s home. He consumed red wine whilst the deceased was preparing dog food and later whilst in the spa. The two plastic wine glasses located at the scene support the conclusion that the accused and the deceased were drinking whilst in the spa. I am satisfied that the deceased was a fit, healthy woman who regularly exercised. She weighed approximately 50 kilograms. She had been misdiagnosed with osteoporosis, although she was osteopenic. Consistent with the misdiagnosis, she was taking medication to treat osteoporosis. I accept the evidence of Dr Thomas and find that the medication would not have had an adverse effect on the deceased. Even though the medical evidence suggested her bone density was in the normal range, Professor Byard observed soft ribs which suggests that she might have been more prone to rib fractures than someone who was larger and more robust. This conclusion is also supported by the evidence that the deceased had suffered previous rib fractures. I rely upon Professor Byard’s observations and opinions. Professor Byard did not observe any bruising to the chest of the deceased. Whilst I accept his evidence that there can be situations where a person may have significant internal injuries and yet the skin is unmarked, he gave that evidence in the context of his experience with victims involved in motor vehicle accidents. One would expect that if the accused had stomped on the deceased repeatedly there would be some bruising on the skin. Although he had not seen it to such a degree as in the present case, Professor Byard accepted it was possible that a flail chest and rib fractures can be caused by performing CPR, particularly in cases where a person is frail or has brittle bones. Having regard to the foregoing, I cannot exclude the possibility that at least some of the deceased’s chest injuries were caused by the accused performing CPR. The injuries to the chest required considerable force. I cannot exclude the possibility that the accused applied significant force to the deceased’s chest when performing CPR. For the reasons which follow I conclude that at the time that the accused applied CPR the deceased was suffering from significant injuries which were as a result of the accused assaulting her. Those injuries substantially contributed to the deceased’s death.

Ratio Decidendi

Legal Principle Established

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