R v David Brian Shinner No. 4281 Judgment Nos. SCCRM 93/282, SCCRM 93/350 Number of Pages 6 Criminal Law and Procedure- Judge's Summing-up

[1993] SASC 4281

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), DEBELLE(2) AND MILLHOUSE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - Issue of murder or manslaughter - failure to relate directions as to intoxication to specific issues as to accused's state of mind to be determined by jury - risk of miscarriage of justice.

HRNG ADELAIDE, 18 October 1993 #DATE 25:11:1993
Counsel for appellant Shinner:     Mrs M E Shaw
Solicitors for appellant:         Ms B J Waldron
Counsel for respondent R:         Mr J J Doyle QC
   with Ms R C Gray
Solicitors for respondent:         Director of Public
   Prosecutions

ORDER
Appeal allowed.

JUDGE1
KING CJ The appellant was tried by judge and jury in the Supreme Court jointly with one Dix on a charge of the murder of Graham Esplin, a 31 year old man. Dix was found not guilty but the appellant was convicted. He appeals against that conviction. 2. On Monday, 9th March 1992 the appellant, Dix, the deceased and a young woman Rebecca Rinaldi were in company with one another in the south parklands. All four had slept in the parklands the previous night. Rinaldi was Dix's girlfriend. Dix and Rinaldi were well acquainted with the appellant. They had made the acquaintance of the deceased in the previous few days. They all participated in drinking a cask of wine during the afternoon. A question arose as to purchasing another cask and the means of paying for it. There was a dispute which escalated into violence. The deceased suffered blows from punches and kicks. He lay in an injured condition in the parklands until the following day when he was taken to hospital by ambulance. There were no skull or facial fractures but the deceased was found to be suffering from a subdural haemorrhage. Despite treatment, including operative treatment, he died of his injuries. 3. The case for the prosecution rested to a considerable extent on the evidence of Rebecca Rinaldi. She gave evidence that when the dispute arose, the appellant punched and kicked the deceased in the head while the deceased was standing. There were three kicks to the head. Dix also kicked him. The deceased walked away. The appellant said: "I am going to drop this cunt," and ran after the deceased. 4. Rinaldi said that she saw the appellant kick the deceased in the head about ten times and heard another ten kicks. The deceased was on hands and knees. The appellant appeared to be very angry. He had been drinking and was "tipsy". 5. The appellant gave evidence that he offered to fight the deceased because the deceased was abusive towards Rinaldi. He delivered punches to the deceased's head. Dix kicked the deceased in the head a few times. The deceased walked off. The appellant followed because he feared that the deceased was going to the police. The appellant denied that she said that he would "drop" the deceased. The deceased fell down. He was drunk. The appellant kicked the deceased in the ribs three or four times because he thought that he was going to the police. The appellant said that Dix also kicked the deceased in the ribs. The appellant claimed that while he and Dix were cleaning the deceased up, his head came into contact with a tap. 6. The appellant agreed that the kicks delivered by Dix were light and that Dix's conduct had no part in the deceased's death. On the appeal Mrs Shaw who appeared for the appellant conceded that the subdural haemorrhage which resulted in death was caused by the appellant's violence and that a verdict of guilty of at least manslaughter was inevitable. She contended that the verdict of guilty of murder should be set aside and that a verdict of guilty of manslaughter should be substituted. That was also the way in which the appellant's case was presented at trial. The learned trial judge crystallized it in the summing up as follows:
    "Against that background it is the case of Shinner that,
    although he may well have caused or contributed to Esplin's
    death by the punches which he administered to Esplin, he did not
    ever kick him, nor did he ever have any intention to kill or
    inflict grievous bodily harm to Esplin. He further says that he
    did not, at any stage, develop a realisation that, when he
    struck the blows in question, death or grievous bodily harm
    would probably result from his actions. As I understand his
    case it really amounts to a contention that although there may
    be evidence which could properly lead to a verdict of
    manslaughter against him, the evidence does not justify a
    verdict of murder." 7. The deceased's death undoubtedly arose out of a drunken episode of sudden unpremeditated violence. The three participants were drunk. Whether the cause of the quarrel was contribution to the cost of another cask of wine or the deceased's behaviour to Rinaldi, the quarrel was sudden and the cause was not of a kind which would be likely to cause a person to form an intention to inflict death or grievous bodily harm. Clearly liquor played an important part in what occurred. In those circumstances a clear direction was needed as to the distinction between the basic intent to punch or kick and the specific intent to cause death or grievous bodily harm, and as to the bearing of intoxication upon the inferences as to intention which could be drawn from the appellant's conduct. The defence was that although the appellant intended to punish the deceased he did not intend death or grievous bodily harm. It was a critical aspect of the defence case that the intoxication of the appellant rendered it unsafe to draw the inference as to his state of mind which might otherwise be drawn from his actions. It was important that that aspect be clearly explained to the jury. The learned trial judge directed the jury carefully as to the mental elements of the crimes of murder and manslaughter. He explained thoroughly, but in general terms, the various ways in which intoxication can affect criminal responsibility. The problem is whether the directions given were related sufficiently to the factual issues to enable the jury to perform its task. 8. A summing up is not a theoretical exposition of the law. Its primary purpose is to explain to the jury so much of the law as is necessary to enable the jurors to adjudicate upon the issues in the case. There is a limit to the capacity of ordinary members of the public, untrained in the law and often unaccustomed to formal processes of reasoning, to comprehend long expositions of legal principle. Jurors are easily overburdened and confused by excessive legal directions which are not related to the task which confronts them. A good summing up limits the directions as to the law to what is truly necessary to resolve the issues in the case and endeavours to crystallize the legal issues in a way which simplifies the jury's task of applying the legal principles to the facts of the case as they find them. Judges now have access, by means of the computer, to a considerable body of precedents of summings up. Care must be taken to ensure that that does not produce a tendency to sum up in general terms rather than to explain the law in a way which is practical having regard to the context of the particular case. 9. The learned trial judge went to great pains to explain the law as to the bearing of intoxication on criminal liability. There is, however, little in the summing up which relates that explanation to the precise issues in the case. The nearest that it comes to doing so is the passage in which the judge directs the jury's attention to "particular facets which you will need to address carefully". He then said: "First, the relative states of intoxication of the various dramatis personae and any effect that that had on their memories perceptions and states of mind, for the reasons I have mentioned to you." 10. I am left with an uneasy impression that the jury may not have been sufficiently aware of the precise issues which they had to resolve as to the appellant's state of mind and the bearing of his intoxication upon those issues. Despite the appellant's evidence to the contrary, there was a strong body of evidence leading to the conclusion that the appellant's boot made contact with the deceased's head on more than one occasion. There was therefore an issue for the jury as to whether the appellant intended to make contact with the head. That inference might readily be drawn from the appellant's actions if he were sober. The inference might not as readily be drawn in the light of his intoxicated state as it would be, if he were sober. If he did intentionally and repeatedly kick the deceased's head, the inference that he intended at least grievous bodily harm might readily be drawn if he were sober. It might be less readily drawn by reason of his intoxication. 11. Despite the accuracy and completeness of the learned judge's treatment of the general questions of the mental elements of the crimes and of the topic of intoxication, I am by no means convinced that the jury would have appreciated the bearing of intoxication on the precise issues which they had to resolve. I think that a proper explanation of the defence required that the jury's attention be specifically directed to the significance of intoxication in considering the critical issues to which I have referred. 12. There was a good deal in the evidence to support manslaughter as the proper verdict. The killing resulted from a sudden drunken quarrel disclosing no probable motive for murder. The actions of the participants both before and after the assault were strange if not bizarre. The whole incident appears to be clouded in an alcoholic haze. I think that if the jury's attention had been directed more specifically to the bearing of intoxication upon the precise issues to be resolved, the verdict might well have been manslaughter rather than murder. 13. In all the circumstances I cannot feel confident that the verdict of murder is not a miscarriage of justice. Counsel for both the appellant and respondent agreed that if that was the Court's view, a retrial on the charge of murder would not be appropriate and that a verdict of manslaughter should be substituted. They both agreed moreover that this Court should proceed to pass sentence. 14. A number of other points were argued on the appeal but in view of the conclusion to which I have come it is unnecessary to consider them. 15. The appellant was born on 27th October 1961. He has a long record of convictions including offences of dishonesty and others involving the abuse of liquor and unlawful drugs. He is of low average intelligence. The crime involved kicking a helpless drunken man to death. It must therefore be viewed seriously. It is saved from being the crime of murder only by the absence of a proved specific intent to kill or do grievous bodily harm. There was nevertheless an intention, formed in a state of self-induced intoxication, to punish the deceased by multiple kicks to the body. 16. In my opinion the appropriate sentence is imprisonment for 12 years with a non-parole period of 10 years, both commencing on 28th April 1992.

JUDGE2 DEBELLE J I agree with the reasons of the Chief Justice and the orders he proposes.

JUDGE3 MILLHOUSE J I agree. I do so with reluctance because I think that the Court of Criminal Appeal often is rather too willing to interfere with the result of a trial due to arguable defects in a careful summing up. However in this appeal the Chief Justice's logic is unarguable. 2. In the course of a very long and technically competent summing up the learned Trial Judge has almost wholly failed to link his exposition of the law to the facts. 3. The law relating to the facts is complex. I think it was essential that the jury should have had explained how each legal concept related to the relevant piece of evidence. The learned Trial Judge failed to do that except in the short paragraph to which the Chief Justice has referred. 4. In his usual careful way the learned Trial Judge also provided the ladies and gentlemen with an aide memoire but this is the only part of it relevant to intoxication:-
    "13. Intoxication Need to consider possible effect on:-
     . Voluntariness of acts
     . Formation of necessary intents, realisations, appreciations
    or other states of mind Crown must negative possible lack of
    voluntariness or non-formation of relevant, requisite states of
    mind." Correct but not easy for a layman or woman to grasp and no guide as to how the legal concepts applied to the evidence. 5. That being so I doubt whether the jury would have understood (to use the words of the Chief Justice), ".......the distinction between the basic intent to punch or kick and the specific intent to cause death or grievous bodily harm, and as to the bearing of intoxication upon the inferences as to intention which could be drawn from the appellant's conduct." 6. There are a couple of other matters which worry me. The summing up was a long one - over 122 pages of transcript - and took the learned Trial Judge about three to four hours to deliver. I must confess that my poor brain reeled as I read and re-read the summing up, trying to follow and understand the labyrinthine intricacies of the law as expounded by His Honour. If I, with legal training, the advantage of being able to read the summing up and the time to read it more than once, had this trouble, how much more difficult must it have been for 12 lay men and women hearing it all read to them once? 7. A summing up should be as short as possible, put in simple, every day language, the law expounded and linked to the facts. The aim is to explain to the jury how it should tackle the job of coming to a decision: a summing up is not an essay. If that aim be not attained the jury is left with no guide and comes to its decision unaided by the judge. I expect that happens: it makes a farce of the system. 8. I acknowledge that all that is easier said than done but it is what we must be trying to do (and why) when sitting as trial judges. 9. The other matter is this. I notice early in the summing up:-
    "This material - MESSAGE FROM JURY HANDED TO HIS HONOUR,
    HIS HONOUR: I am sorry. I will speak a little slower. There is
    a natural tendency, when you have got a lot to get through, to
    get through it rapidly. I will slow down." 10. However appropriate the prepared words may be, all the time and effort gone into preparation is wasted if the delivery be such as not to give jurors the time to hear, let alone understand them. 11. Counsel have agreed that if we were to allow the appeal a verdict of manslaughter should be substituted. As we should allow the appeal for the reasons given by the Chief Justice, I do not need to canvass the many arguments which Mrs Marie Shaw put to us in support of the same result. 12. I respectfully agree with the penalty proposed by the Chief Justice.