R v Donald Rex Wingfield Nos. SCCRM 93/450 and SCCRM 93/451 Judgment No. 4451 Number of Pages 7 Criminal Law and Procedure Judge's Summing up

[1994] SASC 4451

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

CWDS
Criminal law and procedure - judge's summing up - Murder - intent to do grievous bodily harm - intoxication - inadeqaute direction as to degree of harm which must be intended - consideration of expression "serious bodily harm" in substitution for "grievous bodily harm" - inadequate direction as to bearing of intoxication - child battering - verdict of manslaughter substituted on appeal. R v Perks (1986) 41 SASR 335, applied.

HRNG ADELAIDE, 23 February 1994 #DATE 31:3:1994

Counsel for appellant:     Mrs M E Shaw

Solicitors for appellant:    W H Cruickshank

Counsel for respondent:     Mr P J L Rofe QC with
   Ms A C Andrews

Solicitors for respondent: Director of Public Prosecutions
   (SA)

ORDER
Appeal allowed

JUDGE1 KING CJ This is an appeal against a conviction by verdict of a jury of the crime of murder.

2. The appellant is a 24 year old man. He was living with his de facto wife at Whyalla. They have a four year old son. Towards the end of 1992 the appellant and his wife agreed to care for the son of the wife's brother for a time. That child was named Andy and was about 18 months old.

3. On the night of Thursday 18th February 1993 the appellant's wife was at home and she put the two children to bed about 9 p.m. The appellant had been out drinking during the day. He arrived home drunk after midnight.

4. The appellant's wife gave evidence that when the appellant arrived home he was swearing and was in an angry mood. He said that it was silly to be looking after Andy for her brother and he beat her across the head with his elbows. The wife gave evidence that there followed an episode of violent conduct towards Andy. The appellant, according to her evidence, subjected Andy to what can only be described as brutal treatment for a protracted period. The treatment included dropping Andy on the floor, dropping him on to a swag a number of times, forcing him to stand upright without touching the wall for a considerable period, kicking the child in the head with a bare foot and striking him with a hand on the face and head. During the course of this ill treatment the appellant also struck his wife.

5. The following morning the appellant asked his wife how Andy came to be in an injured condition and how she had received her injuries, as though he had no memory of what had occurred the night before. His wife told him what he had done. The following day the wife took the child to the Whyalla Hospital, he was admitted about 3 p.m. with multiple injuries. His injuries included injuries to the head and fractures of both arms. The child died of a raised inter cranial swelling following a closed head injury.

6. The appellant gave evidence that he had spent the day drinking. He stated that he was drunk when he returned home. He saw his wife hitting and shaking Andy. The appellant grabbed the boy to protect him. He struck his wife to get the boy free of her. In the course of the struggle he stumbled and accidentally dropped the boy. He held the boy while the argument with his wife continued. He lay down with the boy on the swag and fell asleep while the boy was lying next to him. The next morning the boy was with his wife. The appellant denied subjecting the boy to any ill treatment.

7. The principal forensic issue before the jury was whether the child had sustained his injuries at the hands of the appellant or at the hands of the appellant's wife. Before us, however, Mrs Shaw, who appeared for the appellant, did not challenge the finding, implicit in the jury's verdict, that the child sustained the injuries at the hands of the appellant. She submitted, however, that the verdict of murder could not be sustained and that this court should substitute a verdict of manslaughter.

8. Although the principal forensic issue at trial related to the authorship of the deceased's injuries, there was a real issue as to whether, if the appellant was responsible for the injuries, he had the necessary intention to constitute the crime of murder. It was not contended that the appellant intended to cause the death of the child, but the prosecution contended that his intention was to do grievous bodily harm.

9. The intention of the appellant was a crucial issue. The injuries which he caused were grievous. If caused by a sober rational man, the inference that they were caused with the intention of doing grievous bodily harm would be strong. The appellant, however, had no rational cause to do grievous bodily harm to the child and the appellant was drunk. These circumstances demanded a careful direction to the jury as to nature of the intention which was required for a verdict of murder and as to the bearing of intoxication upon the issue of intention. There were problems in the summing up as to both of those points.

10. In R v. Perks (1986) 41 SASR 335 this court held that the expression "serious bodily harm" insufficiently expressed the degree of harm which was required to be intended to constitute the crime of murder. It held that if an alternative to the expression "grievous bodily harm" was to be used, the alternative expression should be "really serious bodily harm".

11. The learned Judge commenced his directions on the elements of the crime of murder by identifying six such elements. The fifth such element was stated to be:-
    "That the accused intended to kill or to cause serious
    bodily harm to the deceased."

12. It must be observed that in that initial direction, which was reduced to writing and remained in the jury's possession throughout their deliberations, His Honor described the degree of bodily harm which must be intended as "serious" and not "grievous" or "really serious". The third element in His Honor's list was "that the act or acts of the accused were conscious and voluntary". In elaborating this third element, however, His Honor fell into confusion between voluntariness and intention. He said this:-
    "The third element is whether, if you found the second
    element proved beyond reasonable doubt against the accused,
    his acts were conscious and voluntary. Did he intend to do
    it? There must be an intention to kill or to inflict
    grievous bodily harm, the criminal intention necessary for
    murder. That means that you have to consider the state of
    mind of the accused. If he had the required criminal
    intention? That is, did he intend to kill Andy Boy or to
    inflict really serious harm upon him? The Crown says that he
    did, that his actions speak for themselves."

13. His Honor then went on to make further references to intention and to refer to intoxication in that connection.

14. When His Honor came to elaborate upon the fifth element he said this:-
    "The fifth element, if you find the four preceding elements
    proved beyond reasonable doubt, is whether the accused
    intended, either to kill Andy Boy or at least to cause him
    serious bodily harm. One or other is sufficient. Serious
    bodily harm means really serious harm, really serious bodily
    injury. It is not a term of art. There is no legal
    definition of grievous bodily harm, serious bodily harm,
    whatever the words are I have been using. It is a matter
    for you to decide whether this was a case of really serous
    bodily injury. It is for you but I don't expect you will
    have much trouble deciding it was."

15. His Honor then went on to direct the jury as to the relevance of intoxication to both the third and fifth elements.

16. When the jury retired counsel for the accused complained about the direction as to the mental element of murder and asked for a redirection. His Honor redirected the jury as follows:-
    "There is a further direction on the state of mind necessary
    to prove murder or manslaughter. The state of mind
    necessary to prove murder is an intention to kill or to
    cause really serious bodily harm. You must consider what
    the accused actually intended at the time, bearing in mind
    what he is alleged to have done and to the extent of his
    intoxication."

17. The jury retained the typed sheet of paper setting out the elements of the crime of murder which used the expression "serious" in the description of the fifth element. That this document was an important influence in their deliberations is shown by a question which the jury put the Judge after a period of deliberation. The question was submitted in writing and was as follows:-
    "Elements of murder. Item 5. Some confusion in
    relationship to this exists. Is either intended death, or
    the causing of serious bodily harm enough for murder
    conviction?"

18. The answer given was as follows:-
    "The answer is 'Yes'. It is one or the other required, not
    both. It can either be an intention to cause death or an
    intention to cause serious bodily harm. If either intention
    is present and the other elements are proved then that is
    sufficient."

19. It will be noticed that the answer again used the expression "serious" and thereby reinforced the use of that word rather than "grievous" or "really serious" in the typed document.

20. In the totality of the circumstances as outlined above, I cannot feel confident that the jury applied the true test for determining whether the intention to murder was present. That intention involves a degree of harm of greater gravity than is necessarily denoted by the word "serious". There are injuries which could probably be described as serious which fall far short of the grievous bodily harm which must be intended in order to constitute the crime of murder.

21. There is a further difficulty with the summing up. There is a danger in a case such as the present that a jury will focus upon the degree of harm actually caused and be deflected thereby from the true issue as to the intention of the accused. It is necessary for a trial judge in such a case to be astute to focus the jury's mind on the true issue for their consideration. I fear that an unfortunate lapse by the learned trial Judge may have had the opposite effect. In the passage elaborating the fifth element, which I have quoted above, His Honor, although purporting to deal with the mental element, lapsed into a reference of the injury actually caused. He said "It is a matter for you to decide whether this was a case of really serious bodily injury. It is for you but I don't expect you will have much trouble deciding it was." This was a particularly unfortunate remark which could well have had the effect of confusing in the minds of the jury the degree of harm actually caused with that which was intended by the accused. In later directions, of course, His Honor referred to the intention. He did not at any stage, however, retract that statement. Later remarks in the absence of the jury show that His Honor regretted having made it, but he did not take the course which I think was necessary in the circumstances, of expressly directing the jury that the issue for them was not the seriousness of the injury caused but the accused's intention.

22. The appellant's intoxication was an important element in the case. The nature of the injuries were such that, if the perpetrator were sober and otherwise in his right mind, the inference that grievous bodily harm was intended would be almost inevitable. This appellant, however, was not sober. He was undoubtedly drunk. There seems to be no reason to doubt the genuineness of his amnesia on the following morning for the events of the previous night. The utmost care was required in directing the jury to the bearing of his intoxication upon the issue of intention. Unfortunately I think that there was a degree of confusion and inadequacy in the directions which were given on the topic in this charge to the jury.

23. After directing the jury that self induced intoxication is not a defence to a charge, His Honor said:-
    "If the accused was so effected by alcohol as to be
    incapable of performing a conscious voluntary act, Element
    2, or of forming the requisite intention, Element 5, then
    obviously he did not perform a conscious voluntary act, or
    form a necessary intent. If you have a reasonable doubt as
    to whether or not he was capable of performing the conscious
    voluntary act, or of forming the necessary intent, then
    obviously neither act nor intent has been proved beyond
    reasonable doubt. That would be so only if you think the
    accused's taking of alcohol may have effected his capacity
    to perform a conscious voluntary act or acts, or may have
    effected his capacity to form an intention. The evidence on
    that matter should be considered by you, along with all
    other elements in deciding whether the necessary capacity
    and intention has been proved beyond reasonable doubt."

24. It should be said at once that there could be no real question in the present case of the appellant's acts being involuntary. There can be no doubt from his actions that his will was directing those actions. Moreover he clearly intended to do what he did. The real question in the case relates to the mental element of murder and in particular whether, in his drunken state, he inflicted the terrible injuries without the intention to cause grievous bodily harm. In the passage quoted, His Honor directed the jury in terms of the bearing of intoxication upon the actual intention which was formed, but in terms of the effect of intoxication upon the appellant's capacity to form the relevant intention. This was clearly a misdirection. The question was not whether the appellant was capable of forming the intention but whether he in fact formed it.

25. After the jury retired counsel for the accused complained of the directions as to intoxication and asked for a redirection. There followed the redirection which is quoted above in which His Honor referred to the extent of the appellant's intoxication and its bearing upon "what the accused actually intended at the time".

26. I think that the jury might well have been confused by these directions as to the relevance of intoxication. Moreover they did not have the advantage of a direction which directly brought to bear the directions as to intoxication upon the vital issue which they had to decide. Deliberations of the jury would have been greatly assisted, in my opinion, by being reminded directly that inferences to intention which might be readily drawn from the nature of the injuries inflicted if the perpetrator is sober, might not as readily be inferred if the perpetrator is drunk, and that the critical issue for their consideration was whether, by reason of his drunkenness, the appellant might have inflicted these grievous injuries notwithstanding the absence of an intention to inflict that degree of harm.

27. When the above considerations are considered in their totality, they lead, in my opinion, inexorably to the conclusion that the trial has miscarried. The verdict of guilty of murder therefore cannot stand.

28. It remains to consider whether a new trial should be ordered or whether a verdict of manslaughter should be substituted. There can be no doubt about the appellant's guilt of the crime of manslaughter, if he is content to accept a verdict of guilty of manslaughter. The question is whether the interests of justice are sufficiently met by substituting such a verdict or whether they require that the appellant be retried for murder.

29. I have reached the conclusion that a properly directed jury would be unlikely to find the appellant guilty of murder. There is no motive for an intention to kill. It was not contended that the appellant had such an intention. He had apparently become angry at being left with his de facto wife's brother's child for an extended period and on the night in question, in his drunken state, he appears to have been taking that anger out on the child. It seems unlikely, however, that he had any intention to cause the child grievous injury. He was undoubtedly quite drunk. The most likely explanation of the events of the night appears to be that he vented his anger on the child without appreciating the degree of injury which his actions would cause.

30. I have reached the conclusion that the interests of justice would be best served by substituting a verdict of manslaughter.

31. In my opinion, for these reasons, the appeal against conviction for murder should be set aside and there should be substituted a verdict of guilty of manslaughter.

JUDGE2 BOLLEN J I agree with the reasons of and the order proposed by the Chief Justice. I, too, agree that the interests of justice will be best served by substituting a verdict of "guilty of manslaughter".

JUDGE3 MULLIGHAN J I agree that the appeal should be allowed for the reasons expressed by the Chief Justice and I agree that a verdict of guilty of manslaughter should be substituted for the conviction for murder.