R v Edwards
[2005] VSCA 92
•21 April 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 376 of 2003
| THE QUEEN |
| v. |
| KEITH MARTIN EDWARDS |
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JUDGES: | WARREN, C.J., WINNEKE, P. and BUCHANAN, J.A. | |
WHERE HELD: | MILDURA | |
DATE OF HEARING: | 20 April 2005 | |
DATE OF JUDGMENT: | 21 April 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 92 | |
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Criminal law – Murder – Deceased shot by accused – Principal issue at trial was lack of intent to kill or cause really serious injury – Defence did not put in issue whether accused’s act was voluntary – Trial judge not obliged to raise issue of voluntary act – Inadmissible evidence of scientific experiment led before jury – Trial judge directed jury to disregard evidence – No high degree of need to discharge jury – Sentence – Sentence of 19 years' imprisonment with a minimum term of 15 years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr D. Brown | Mr Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Ms K.E. Judd | Victoria Legal Aid |
WARREN, C.J.:
I invite Buchanan, J.A. to state his reasons first.
BUCHANAN, J.A.:
On Christmas Day 2001 the applicant, a 55-year-old man, shot and killed Vincent Vassallo at a vineyard some six kilometres outside Mildura. The applicant was charged with murder. After a trial the applicant was convicted and sentenced to be imprisoned for a term of 19 years, and a non-parole period of 15 years was fixed. The applicant seeks leave to appeal against the conviction and sentence.
The vineyard consisted of 26 acres and contained two dwelling houses and a pickers' hut. The vineyard was owned by Anthony Ljubicic and his parents, who lived in one of the houses. The other house was rented to one Colin Clarke, who lived there with his family. Larry De Luca owned and worked on a neighbouring property. De Luca had worked in Sydney near the applicant's flat. The two became friends and in 2001 De Luca suggested that the applicant should come to Mildura. De Luca arranged for the applicant to work with Ljubicic and to live in the pickers' hut on the vineyard. A few weeks before Christmas 2001 Colin Clarke left the house on the vineyard with the intention of going to Queensland. On 18 December 2001 Ljubicic let the house to another. Vassallo was apparently involved in that transaction.
On Christmas day Clarke and his family unexpectedly returned to live in the house. The applicant, Ljubicic, and his brother were in the pickers' hut when Clarke and Vassallo arrived. Vassallo was annoyed by the change in the lease arrangement and raised his voice in discussions with Clarke and Ljubicic. Clarke and Ljubicic left so that Ljubicic could collect $50 to repay to Vassallo the deposit of rent paid on 18 December 2001.
The applicant had a double barrelled shotgun in the pickers' hut. He had obtained it from Ljubicic to guard against brown snakes which were in the area. The applicant had also obtained from Ljubicic a written note authorising the applicant to demand that unwanted visitors to leave the property.
In his evidence at the trial the applicant said that he heard a car leaving and thought that the deceased had left. He waited a minute or two and then looked outside. He saw Ljubicic's car and the deceased walking up and down, apparently talking to himself. The applicant said that he seemed to be winding himself up and getting annoyed. The deceased saw the applicant and said: "Hello. What do you want?" The applicant replied: "Are you all right?" And the deceased said: "Yeah, why?" The applicant told the jury that he formed the opinion that the deceased was becoming annoyed, and the applicant told him: "Well, we'll be happy when you get off the property." He said the deceased flipped at that, he really became aggressive and said: "You can't tell me what to fucking do." The applicant said he was getting scared and said he thought he ought to get the authority and request the deceased to leave the property. The applicant went into the hut and collected the gun, not the authority. He then came out of the hut, stepped over a low fence, and said: "Come on you, get off the property. Move." The applicant said that he took a few steps forward and suddenly the deceased came towards him saying: "I don't give a fuck for you or your gun." It was at that point that the right-hand barrel of the gun was fired.
De Luca gave evidence. He said that Ljubicic and Clarke left. He and the deceased were outside the hut talking and waiting for Ljubicic to return. The applicant came to the door and the deceased said: "Good day, Keith." The deceased walked toward the applicant, who said: "Get off the property." The applicant held the gun forward facing the deceased. De Luca said he told the applicant: "Yes, Keith, it's OK, leave him, he's just waiting for the money. It's OK, Keith." De Luca heard the applicant say again: "Get off the property." The deceased said either, "No" or "Why should I?" Then the gun discharged.
Clarke returned immediately after the shooting. He said in evidence that as he alighted from his vehicle the applicant went to him and gave him $50 for a car he had purchased from Clarke. Clarke said: "Don't worry about that." The applicant said: "I accidentally shot Vince." Clarke thought the applicant was a bit shaken up.
Ljubicic, in his evidence, said that he saw the applicant and Clarke walking along the driveway. The applicant said he had shot Vince, and when asked why, said something like "He was picking on me." He said the applicant looked somewhat distraught.
When the police arrived the applicant said: "I'm your man. I did it. It was a bloody accident. Do you want me to show you where the gun is?" A policeman gave evidence that the applicant appeared pale, ill and shocked. The applicant described the discharge of the shotgun as an accident. He said in his record of interview: "Well, I had the gun like this, and bang, it just - I mean, I must have touched it, I must - I know it didn't go bang on its own, I know I pulled the trigger but it wasn't a conscious or - nothing, do you understand, it was get off this land, bang. There was no, you know what I mean?"
At trial he said: "I've just picked the gun up and I've come out with it and I stepped over the fence and he was standing roughly where the (indistinct) was, and I was using the gun like this, as a sort of 'come on, you, get off this property, move.' And I must have took a couple of steps forward and suddenly he started to come towards me and he was saying, 'I don't give a fuck for you or your gun', and suddenly the gun discharged, just like that, and I was left just absolutely shocked. He flew backwards, like he sort of flew back like that, and I was absolutely shocked." In the course of cross-examination he said: "Yes, he was - he was close and it just went boom, just happened so quickly, so really quickly."
The grounds of the application which were pressed in the course of this application were as follows.
"3.The learned trial judge erred in effectively removing from the jury's consideration the issue of whether the applicant committed a voluntary act.
4.The learned trial judge erred in his directions to the jury on involuntary or unwilled act, and in particular erred in the circumstances of this case in equating the concepts of consciousness and voluntariness.
5.The learned trial judge erred in not discharging the jury after Senior Constable Pringle gave evidence of test results concerning gas tearing."
With respect to grounds 3 and 4, counsel for the applicant conceded that the applicant admitted that he caused the deceased's death. He loaded the gun, released the safety catch and pulled the trigger, exerting a force of 2.2 kilograms to cause the gun to fire. Counsel for the applicant conceded that the principal issue at the trial was whether the applicant intended to kill the deceased or cause him serious injury. Nevertheless, so it was said, the jury was required to consider whether the applicant discharged the gun voluntarily, that is, whether his action in pulling the trigger was willed. In this connection two distinct complaints were made about the trial judge's directions to the jury.
The first was that his Honour equated consciousness with voluntariness so that the jury may have reasoned that because the applicant was conscious, that is, aware of his actions, they were therefore voluntary. It was submitted that it was not appropriate to raise the question of consciousness when no defence based on impaired consciousness was advanced by the defence. The second complaint was that the trial judge effectively removed from the jury's consideration the issue of whether the applicant acted voluntarily. While the trial judge did at times tell the jury that they had to be satisfied of each of the elements concerning the applicant's state of mind, namely, that he performed a conscious, voluntary and deliberate act with the intention of killing or inflicting really serious injury, he emphasised that the only real issue was the last element. For example, he said:
"Now, members of the jury, it is no doubt apparent to you on this eighth day of this trial that it would appear that the real issue in this case concerns element four. But having said that, of course, you must be satisfied of each element of the charge beyond reasonable doubt. I propose to go through each element."
Later he said:
"Now, they are examples where you might say that the act was not a conscious and/or voluntary and/or deliberate act, but here the accused was conscious. At some moment in time he loaded the gun, he retrieved it from the hut. Either he had or did then release the safety catch, pointed the gun in the direction of the deceased, and must have applied pressure to the trigger. By performing those things he caused the gun to discharge the loaded pellets. When Mr Meredith opened his case to you on the first day he said the primary area of dispute concerned the fourth element. I did not understood him to adduce any evidence either in cross-examination or from the accused, or put any submissions that the actions of the accused were not willed, that is, his actions were conscious, voluntary and deliberate. Given the evidence, the way the case has been presented and defended, you should have little difficulty, and of course, as I point out, it is a matter for you, that the Crown has proven this element beyond reasonable doubt, namely, the act of discharging the gun was a conscious, voluntary and deliberate act."
In my opinion his Honour's concentration upon the last element was appropriate having regard to the issues which emerged during the course of the trial. Counsel for the applicant at the trial saw the real issue as whether the firing of the gun was an accident in the sense that the applicant did not intend the consequence of death or really serious injury. The word "accident" was used by both the applicant and his counsel. There was, however, no suggestion that the gun had been discharged otherwise than by the applicant pulling the trigger. The firing of the gun was viewed by the defence as an accident, in the sense that it was a conscious, voluntary and deliberate act of the applicant that had the unintended consequence of the death of Vassallo. The following exchange between the trial judge and counsel for the applicant in my view is telling. His Honour said:
"I must say that I thought it was the fourth element. But look, I'm not tying you down at this stage, Mr Meredith, but it seems to me that there is ample evidence that that element, three, had been established. And indeed your client admitted as much to the police on the night."
Counsel replied: "I accept that, Your Honour."
The concession was consistent with the stance adopted by counsel for the applicant throughout the trial. In his opening address to the jury he had said that "The primary issue in this trial is the applicant's state of mind at the time when the gun discharged." In his closing address counsel told the jury, and repeated, that they were required to be satisfied that the applicant intended to kill or cause really serious injury. He did not raise the question of whether the applicant's act was voluntary, conscious and willed. In my view that was to be expected. It was hardly in the interests of the applicant to run the difficult case that the firing of the gun was entirely accidental in the sense that it was not the voluntary act of the applicant, and then run the defence in the alternative, that the firing was not intentional.
In my opinion the concession of counsel was appropriate, having regard to the evidence, including the statements made by the applicant in his record of interview and his testimony at the trial. The trial judge was entitled to act on the concession and on the manner in which the defence was conducted. It is hardly surprising that no complaint was made at the trial of the trial judge's treatment of the issue of accident. In my opinion the absence of any real question as to whether the applicant's act of pulling the trigger of the gun was voluntary meets the criticism that the trial judge in his charge equated consciousness and voluntariness. Even if his Honour did run the concepts together, I do not consider that in the circumstances of this trial that led to any injustice to the applicant.
In this Court counsel for the applicant submitted that the trial judge was obliged to leave to the jury the issue of whether the applicant acted voluntarily, even though the applicant's counsel did not canvass the question. Counsel invoked by analogy the well established principle that if any view of the facts proved in a trial of murder might reasonably reduce the crime to manslaughter, it is the duty of the judge to direct the jury to consider the alternative verdict, and the judge is not relieved from that duty because the alternative case was not mentioned by defence counsel.[1]
[1]Mancini v. Director of Public Prosecutions (1942) A.C. 1 at 7 per Viscount Simon; Campbell v. The Queen (1971) 124 C.L.R. 107 at 117-118 per Barwick, C.J., R v. Williamson (2001) 1 V.R. 58 at 68 per Charles J.A.
I do not think that the trial judge was obliged to raise the question for the consideration of the jury. This was not a case of a viable defence which the interests of justice required to be determined by the jury. Rather, the absence of a voluntary act was inconsistent with the evidence, and if the trial judge had advanced the question it may well have distracted the jury from the issue which counsel saw, properly, in my view, as the principal issue in the trial.
Ground 5 concerned the evidence of Senior Constable Pringle, a qualified firearms examiner. Pringle conducted tests in an attempt to demonstrate the distance between the deceased and the gun when it was fired. Using cartridges found in the pickers' hut, he fired four times with the right barrel of the shotgun at sheets of cardboard, one held against the barrel, the second five millimetres away, the third at a distance of one metre and the fourth at a distance of 1.5 metres. Pringle said that the contact discharge produced blackening around the circumference of the hole made by the pellet and gas tearing. The card five millimetres away showed blackening around the hole, and the card one metre and 1.5 metres away showed no blackening or tearing. Pringle expressed his opinion that the shotgun was in contact with the deceased, or five millimetres away, when it was fired because there was blackening and tearing around the wound on the deceased.
Counsel for the applicant sought the discharge of the jury on the basis that the evidence was inadmissible, had "a real capacity to mislead", and was highly prejudicial. The trial judge refused the application. He agreed that the presence or absence of signs of gas tearing on the cardboard was irrelevant because cardboard could not be equated with flesh, blood, muscle and bone, but held that the blackening of the cardboard was probative of the distance between the gun and the deceased's face. His Honour ruled that it was sufficient if he directed the jury to ignore the tests insofar as they were said to demonstrate the distance by the presence or absence of gas tearing.
In this Court counsel for the applicant submitted that, although the tests were admissible to demonstrate the relationship between powder blackening and distance, the evidence as to gas tearing created prejudice which could not be overcome by a direction.
The tests did not constitute the only evidence of the distance between the deceased and the shotgun when it was fired. The doctor who examined the deceased said that in her opinion the distortion of the deceased's face was consistent with a contact shotgun injury. Pringle said that in his opinion the blackening around the wound and the evidence of gas tearing meant the shotgun was against or within five millimetres of the deceased when it was fired. De Luca said that the distance between the gun and the deceased was between one and one and a half metres when the gun was fired. The applicant initially said the distance was ten feet, and later that it was six feet.
The test for the discharge of a jury in these circumstances is a high degree of need.[2] In the present case the inadmissible evidence was far from the only evidence, or the most powerful evidence, of the distance between the gun and the deceased. The importance of the rival versions of the distance is to be judged in the light of the degree of difference between them and the relevance of that difference to the principal issue in the trial, namely, the intent of the applicant when he fired the shotgun. The high degree of need required for the discharge of the jury did not arise. The likelihood of prejudice was slight and removed, by the trial judge's directions to the jury.
[2]Crofts v.The Queen (1986) 186 C.L.R. 427 at 432.
I would refuse the application for leave to appeal against conviction.
The grounds of the application for leave to appeal against sentence were:
"1.The learned sentencing judge erred in finding that the requisite intent to murder was in existence at the time when the applicant picked up the gun from inside the hut he was occupying.
2. That the sentence was manifestly excessive."
Pursuant to the first ground it was contended that the sentencing judge erred in finding that when the applicant went back inside the pickers' hut, after seeing the deceased outside the hut, he had formed the intent of firing at the deceased. Counsel for the applicant submitted that it was not possible to find beyond reasonable doubt that the applicant formed such an intention at that point for the applicant gave the deceased a chance to leave the property. It was only when the deceased refused to leave that the applicant fired the gun.
I think it is evident that his Honour's finding was based upon an overall assessment of the facts. The circumstance that the applicant told the deceased to leave the property before shooting him did not preclude the earlier formation of an intent, nor do I think that the sentencing judge found that the applicant would have shot the deceased if he had left the property.
As to the ground that the sentence was manifestly excessive, the applicant was able to rely upon certain mitigating factors. He had advanced to middle age with a blameless character. The murder was the result of the interplay of emotional forces and appeared to be outside the applicant's normal pattern of behaviour. The trial judge accepted that he was "a peaceful person". The death was not planned or premeditated to any extent. There was no need for a sentence to effect specific deterrence. A forensic psychologist said in a report to the court that, "He is best described as eccentric and reclusive. He is of good intellect." The psychologist thought that there was no doubt that the applicant was remorseful, although the trial judge found that the applicant showed no remorse in the hours after the death. I think, though, that the shock which the applicant was suffering should be taken into account in considering this matter.
The applicant came to Australia from England as a migrant at the age of 40 years. He had no family in this country. He left school at the age of 15 years and worked as a painter and decorator. He left home at the age of 19 years and entered into a de facto relationship and had three children. When he was 34 years old his de facto wife left him because of his drinking. Although the applicant ceased drinking, the family was not reunited. The applicant has worked as a painter and decorator in Australia. He had no real friends.
As the Director acknowledged, the sentence imposed upon the applicant was at the high end of the range available to the sentencing judge. It was, however, in my opinion, within that range, having regard to the circumstances of the offence, and making all due allowance for the mitigating factors which the applicant could pray in aid.
I would also refuse the application for leave to appeal against sentence.
WARREN, C.J.:
I agree with the reasons and the disposition of the applications as stated by Buchanan, J.A.
WINNEKE, P.:
I agree, for the reasons given by Buchanan, J.A. that the application for leave to appeal against conviction and sentence should be dismissed.
Ms Judd, in a well presented argument, raised as her primary contention on the conviction application that the trial judge had erroneously removed from the jury's consideration the issue as to whether the applicant's discharge of the gun was a conscious and voluntary act. However, for the reasons given by Buchanan, J.A., I do not believe that this was a case where it was open on the evidence for the jury to conclude that the gun had discharged accidentally, and it seems to me that the transcript bears out the contention which was made by the Director on the appeal that, at the end of the day, trial counsel for the applicant had abandoned that issue and had confined his client's defence to the proposition that the Crown had not proved that at the relevant time the applicant harboured the necessary intent to constitute the crime of murder. No exception on this basis had been taken to his Honour's charge by the very experienced trial counsel for the applicant, and I think it is necessary to repeat what I have said on other occasions, namely, that the judge and counsel at trial are in a far better position to know and address what issues are alive at the end of that trial than an appellate court, which is wholly removed from the issues and has only the written transcript before it.
So far as the application for leave to appeal against sentence is concerned, I agree with the Director that perhaps by current standards the sentence of 19 years can be described as "high", particularly having regard to the applicant's previous good character, but nevertheless the sentence imposed by his Honour, in my view, was not one which was outside the range of sentences available to him in the exercise of a sound discretion.
WARREN, C.J.:
The order of the Court is:
The applications for leave to appeal against conviction and sentence are dismissed.
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