R v Cummins

Case [2019] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cummins [2019] QCA 308

PARTIES:

R
v
CUMMINS, Kaius Patrick
(appellant)

FILE NO/S:

CA No 156 of 2018
SC No 1411 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 22 May 2018 (Bowskill J)

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2019

JUDGES:

Morrison and Philippides and McMurdo JJA

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – MURDER – where the appellant was convicted of murder and appealed on the ground that that the verdict was unreasonable or insupportable having regard to the evidence – where the central issue was whether the appellant applied a ligature which caused the deceased’s death with the relevant intent – where expert evidence was lead that the deceased’s injuries were consistent with manual asphyxiation – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OFFENCES AGAINST THE PERSON – MURDER – where the appellant was convicted of murder and appealed on the ground that there had been a substantial miscarriage of justice because the trial judge failed to direct the jury as to the proper use they might make of evidence of post-offence conduct – where the post-offence conduct in question was the appellant washing blood from his hands and chest and attempting to set up a false narrative – where the appellant submitted that the direction given was deficient because, inter alia, it failed to identify innocent reasons for the behaviour apart from a realisation of guilt – whether the direction given was deficient – whether there has been a miscarriage of justice

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, considered
R v Chang (2003) 7 VR 236; [2003] VSCA 149, considered

COUNSEL:

A O’Brien with N Boyd for the appellant (pro bono)
D L Meredith for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  I have read the reasons of both Philippides JA and McMurdo JA.  I agree with the reasons of both and the proposed order.

  2. PHILIPPIDES JA:  On 22 May 2018, after a trial, the appellant was convicted of the murder of Nigel Hill and sentenced to life imprisonment.  By his Notice of Appeal, the appellant raised as the sole ground of appeal against his conviction that the verdict was unreasonable or could not be supported having regard to the evidence.  However, at the hearing of the appeal, counsel for the appellant sought and was granted leave to add an additional ground of appeal as…

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AGLC
R v Cummins [2019] QCA 308
Case
[2019] QCA 308
Decision Date

CaseChat Overview and Summary

The appellant, Cummins, was convicted of the murder of Mr Hill and appealed against his conviction on several grounds, including the unreasonableness of the verdict and the trial judge's direction to the jury regarding post-offence conduct. The central issue was whether Cummins applied a ligature which caused the deceased's death with the relevant intent. The court was required to determine whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there was a substantial miscarriage of justice due to the trial judge's failure to direct the jury as to the proper use of evidence of post-offence conduct.

The court found that although the appellant did not advance any submissions in support of the ground of appeal regarding the unreasonableness of the verdict, it was necessary to consider whether the expert evidence regarding the cause of death and the appellant's conduct was sufficient to support the verdict. The court also considered whether the trial judge's direction to the jury regarding post-offence conduct was adequate, particularly in light of the appellant's intoxication at the time. The court noted that the trial judge had provided a proper Edwards direction regarding the use of lies as evidence of consciousness of guilt, but the appellant argued that a similar direction was not given in relation to post-offence conduct. The court ultimately found that the failure to provide an adequate direction regarding post-offence conduct constituted a substantial miscarriage of justice.

The appeal against conviction was dismissed. The court found that the evidence, including the expert evidence and the appellant's conduct, was sufficient to support the verdict. However, the failure to provide an adequate direction regarding post-offence conduct meant that the appellant was deprived of a verdict of manslaughter, and there was a substantial miscarriage of justice. As a result, the court quashed the conviction and ordered a new trial.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

Counsel did not abandon the ground of appeal going to the unreasonableness of the verdict but did not advance any oral or written submissions in support of that ground.Background The appellant was charged with the murder of Mr Hill in a unit at Alexandra Headlands on 21 February 2013. The undisputed evidence was that the appellant and the deceased had been drinking on the day in question in the unit with Ms Cummins, the appellant’s partner. At one stage, Ms Cummins and the deceased went for a walk and on their return to the unit an argument ensued as to whether the deceased had been sexually intimate with (or had sexually assaulted) Ms Cummins. The appellant assaulted the deceased. The expert evidence was that the cause of death was not the blows the deceased received but asphyxiation, consistent with the application of a ligature to his neck. The real issues at trial were whether the appellant applied the ligature to the deceased’s neck and, if so, whether he did so with the intent to kill or do grievous bodily harm.EvidenceMs Cummins Ms Cummins had known the appellant since 2005. Ms Cummins met the deceased through the appellant and she and the appellant went to stay with the deceased about a week after she travelled up from Adelaide. They stayed for three or four days in the deceased’s unit (unit 5 in the complex). Ms Cummins’ evidence was that, on the morning of 21 February 2013, the deceased was depressed because his uncle was in a coma and unwell, and he had no money and no work. All three drank wine throughout the day with the appellant having commenced early in the morning, as he did every day. Ms Cummins spoke to the deceased who talked about what he was going to do, how he was going to get money and that he was very concerned about his uncle in hospital. The deceased’s interactions with the appellant were normal. Towards the end of the day, Ms Cummins left the unit to go to the bottle shop. She went with Trevor Johnson, who lived next door. They were gone for about 20 minutes and Trevor purchased some cask wine which was taken back to the unit and consumed by Ms Cummins, the deceased and the appellant over a period of hours. Around 6.30 pm, the deceased asked Ms Cummins to go for a walk on the beach. Ms Cummins told the appellant that she was going for a walk with the deceased and asked him if he wanted to come. The appellant said he did not want to and was “having a sleep”. Ms Cummins’ evidence was that she and the deceased walked for about 20 minutes by which time it was dark. When they returned from the beach, the appellant was angry and hostile. He had been trying to find out where they were. The tenor of the conversation was that the appellant thought that there was something intimate going on between the deceased and Ms Cummins. The discussion developed into an argument about whether Ms Cummins had told the appellant where she and the deceased were going and whether anything had gone on between the deceased and Ms Cummins. She told the appellant that nothing was going on. The argument seemed to settle and Ms Cummins turned on the television. Ms Cummins then went to take a shower. When she returned, the appellant and the deceased were sitting in the lounge room having a discussion that felt tense and the appellant was accusing the deceased of touching Ms Cummins. The deceased was denying the accusations. The discussion went on for minutes.

Evidence

Evidence Before The Court

The real issues at trial were whether the appellant applied the ligature to the deceased’s neck and, if so, whether he did so with the intent to kill or do grievous bodily harm.EvidenceMs Cummins Ms Cummins had known the appellant since 2005. Ms Cummins met the deceased through the appellant and she and the appellant went to stay with the deceased about a week after she travelled up from Adelaide. They stayed for three or four days in the deceased’s unit (unit 5 in the complex). Ms Cummins’ evidence was that, on the morning of 21 February 2013, the deceased was depressed because his uncle was in a coma and unwell, and he had no money and no work. All three drank wine throughout the day with the appellant having commenced early in the morning, as he did every day. Ms Cummins spoke to the deceased who talked about what he was going to do, how he was going to get money and that he was very concerned about his uncle in hospital. The deceased’s interactions with the appellant were normal. Towards the end of the day, Ms Cummins left the unit to go to the bottle shop. She went with Trevor Johnson, who lived next door. They were gone for about 20 minutes and Trevor purchased some cask wine which was taken back to the unit and consumed by Ms Cummins, the deceased and the appellant over a period of hours. Around 6.30 pm, the deceased asked Ms Cummins to go for a walk on the beach. Ms Cummins told the appellant that she was going for a walk with the deceased and asked him if he wanted to come. The appellant said he did not want to and was “having a sleep”. Ms Cummins’ evidence was that she and the deceased walked for about 20 minutes by which time it was dark. When they returned from the beach, the appellant was angry and hostile. He had been trying to find out where they were. The tenor of the conversation was that the appellant thought that there was something intimate going on between the deceased and Ms Cummins. The discussion developed into an argument about whether Ms Cummins had told the appellant where she and the deceased were going and whether anything had gone on between the deceased and Ms Cummins. She told the appellant that nothing was going on. The argument seemed to settle and Ms Cummins turned on the television. Ms Cummins then went to take a shower. When she returned, the appellant and the deceased were sitting in the lounge room having a discussion that felt tense and the appellant was accusing the deceased of touching Ms Cummins. The deceased was denying the accusations. The discussion went on for minutes. The appellant moved from the couch, where he had been sitting, towards the deceased, who was sitting on a single seater. He pulled the deceased’s legs off the seat, pulling him to the ground so that he was lying on his back. The appellant then sat on the deceased, straddling him, and started to throw punches to the deceased’s face and nose. Ms Cummins was standing behind the couch and behind the appellant. She thought there were six to eight punches. Ms Cummins saw a pool of blood growing bigger. As the appellant punched the deceased he was yelling something to do with the deceased having touched Ms Cummins.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was contended that, in the present case, the post offence conduct evidence was, in the context of the appellant’s marked intoxication, a significant plank in the Crown’s case in establishing intention. The failure to provide adequate directions as to the use that could be made of post offence conduct evidence deprived the appellant of a verdict of manslaughter. Accordingly, there was a substantial miscarriage of justice,[20] notwithstanding that no redirection was sought and the directions were approved by the appellant’s trial counsel.[21]Consideration[20]Cf Criminal Code, s 668E.[21]See: BRS v The Queen (1997) 191 CLR 275 at 306.First complaint It is to be observed that the trial judge discussed the contents of the draft summing up with counsel prior to addresses and it was accepted as appropriate. No redirections were sought and, in particular, it was not requested that the Edwards direction be modified nor raised that there was any deficiency in that regard. The trial judge was careful to give specific and distinct directions, firstly, as to what was relied upon as evidence of confessional statements and, secondly, “things that were said and done” by the appellant which were contended to be “demonstrative of a consciousness of guilt of the offence”. When turning to deal with that second category, her Honour reminded the jury of the evidence relied on by the prosecution, being “what might be described as evidence of consciousness of guilt”. In that regard, her Honour identified that the Crown relied on:[22]“… what are said to be lies told by the [appellant] to the police both shortly after the incident and later at the police station when he was interviewed, in which the [appellant] details a false narrative of what occurred on this night as well as behaviour of the [appellant] immediately after, as showing that he is guilty of the unlawful killing of [the deceased] and of having done so with the requisite intention.”[22]AB1 at 56.28-32. In outlining the second category of evidence, her Honour made it clear that, in relation to “this part of the evidence”, the focus of the prosecution’s argument was on the lies, the false narrative told to police, the other aspects of setting up the false narrative and the conduct of washing blood off himself and that it was the “cumulative effect” that was relied upon. Her Honour, summarising the evidence as to lies, did the same in respect of the other evidence going to consciousness of guilt; the “setting up of the false story or narrative”, and the appellant’s “behaviour immediately after the incident of washing the blood off” himself. After outlining that evidence, her Honour stated that she was then “focussing first of all on the lies told to police” and gave an impeccable Edwards direction in relation to the use of the evidence of lies as evidence of consciousness of guilt. As the respondent submitted, the directions as to lies included not only that lies could be told for reasons other than guilt (and some examples given) but her Honour also told the jury that lies could be told out of a consciousness of guilt of lesser offences such as manslaughter and simple assault. If the jury was not satisfied that the lies went to no more than assault then evidence of the lies could not be used.[23] This immediately preceded the directions on post offence conduct. As mentioned, the appellant does not complain about the appropriateness of the Edwards direction per se. Rather, the complaint was that the Edwards direction was confined to the evidence as to lies and that there was a failure to provide such a direction as to the post offence conduct.[23]AB1 at 58.42-49.