R v Ellem (No 2)

[1994] QCA 549

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1994

Brisbane

[R. v. Ellem]

T H E Q U E E N

v.

WARREN RONALD ELLEM

(Appellant)

Fitzgerald P.
McPherson J.A.

Davies J.A.

Judgment delivered 16/12/94
Separate concurring reasons of each member of the Court.

APPEAL AGAINST CONVICTION ALLOWED. THE CONVICTION AND VERDICT ARE SET ASIDE. A NEW TRIAL ORDERED OF THE CHARGE IN THE INDICTMENT.

Solicitors:  Lang Hemming & Hall for the appellant
Director of Prosecutions for the Crown

Hearing Date: 24 November 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Davies J.A.

[R. v. Ellem]

T H E Q U E E N

v.

WARREN RONALD ELLEM

(Appellant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 16th day of December 1994

We have already allowed this appeal by Warren Ellem
against his conviction for manslaughter arising out of the
death of Gregory Michael Turner on 19 June 1992. The appellant

and Turner were among a group of people who had spent the evening of 7 June 1992 drinking at a football club at Broadbeach on the Gold Coast. At about 10.30 p.m. four of them hired a taxi, driven by a Mr Raymond Jago, to travel to their

homes. The appellant was the first to reach his destination.

He was sitting in the middle of the back seat with passengers on either side of him. One of them was Turner, who got out of the vehicle to let the appellant out. When they were both out of the taxi an altercation took place after Turner demanded that the appellant pay his share of the taxi fare, and a struggle ensued.

After being struck several blows by the appellant, Turner collapsed. He was taken to hospital and treated, but he died on 19 June 1992, when his life support system was withdrawn. By that time there was an area of necrosis in the brain tissue, and medical opinion was that he had no chance of survival. Ground 1(b) in the notice of appeal appears to call in question the propriety of the decision to withdraw the support system and the appellant's responsibility for the death that followed; but the evidence showed quite clearly that Turner's death was

caused by the effects of the initial trauma resulting from the blows inflicted by the appellant, and the matter is covered by

the decision in R. v. Kinash [1982] Qd.R. 648, from which there

is no reason here to depart.

Ground 2 is another ground which, like ground 1(b), was
dealt with in the appellant's written outlines but not in the

oral submissions on appeal. Turner had been convicted of the offence of manslaughter committed in the company of another man Clarke in Victoria in 1975, for which Turner was sentenced to imprisonment for 12 months with a recommendation for parole

after four months. After a careful review of the authorities, Australian, English and American, on the point, the learned trial judge ruled that evidence of the conviction was too remote in time to be relevant and admissible as evidence of a disposition for violence on the part of Turner at the time of

his death. There was evidence that at his death, Turner was

nearly 38 years of age. The conviction for manslaughter was therefore sustained when he was only 20 or 21 years old, and there was no evidence of any subsequent history of violent behaviour. It may be added that evidence of the conviction and

sentence, without more, would have been capable of misleading the jury. The only material apparently available to show the circumstances of killing in 1975 was contained in the reasons of the Victorian Court of Criminal Appeal in dismissing the sentence appeal, and it is very doubtful whether those reasons would have been admissible at the trial of the appellant to prove the circumstances of Turner's offence. We think the learned judge was correct in ruling as he did.

On the hearing of the appeal, submissions on behalf of the appellant were directed primarily to two other matters, of which the first is covered by grounds 1(a), 3 and 4 in the notice of appeal. It concerned the sequence of events leading up to the appellant's physical assault on Turner and his reliance on self defence under s.271 of the Code. Briefly stated, s.271 makes it lawful for a person to defend himself against an unprovoked assault by using such force as is reasonably necessary "provided that the force is not intended, and is not likely, to cause death or grievous bodily harm".

That is what is sometimes called the first limb of s.271. The second limb has been said to operate as a qualification on the first. In effect, it makes it lawful to go so far as to use

even such force as may cause death or grievous bodily harm if the person assaulted believes on reasonable grounds that he cannot otherwise preserve himself from death or grievous bodily harm.

The point at issue here can be understood only by reference to the evidence given at the trial of the appellant about what happened in the course of the incident on 7 June 1992. None of those in the taxi when it stopped to set the appellant down saw the beginning of the fight in the course of which Turner sustained the fatal blow or blows. Of those witnesses, the taxi driver Jago saw more of it than the others, and that was by looking through the rear window of the vehicle.

He saw the appellant holding Turner by the left shoulder and striking him with a series of underarm punches between four and 10 in number. When the appellant let go of him, Turner fell down to the ground on his back.

The only direct evidence of how the physical encounter started came from the appellant himself. He was interviewed by the police and he also gave evidence at the trial. He said that when he got out of the taxi he spoke to Nikki Adamus, who was sitting in the front passenger seat, about paying his share of the taxi fare, saying he only had a $50 note. She said he was not to worry about it. Bending down to pick up his bag from the ground, he heard Turner say words to the effect "Pay

something towards your fare, you mug", and then felt a blow to the back of his head on the right side, which forced him forward and knocked his sunglasses off. Out of the corner of

his eye he saw another fist coming at him from the left, which

hit his left shoulder and then his left ear. He turned to face

Turner, who he saw had his hands up and was throwing punches at him. The appellant put his left hand up to fend Turner off and

hit him in the stomach. That did not stop Turner and the

appellant proceeded to rain blows on him - "three, four, five, I don't know". The other passengers in the taxi then intervened and the appellant was stopped.

According to the evidence of the forensic pathologist
Dr Ashby, who performed the post mortem examination, Turner's
death 12 days later was due to the effects of subdural

haemorrhage with associated subarachnoid haemorrhage causing

intercranial pressure on the brain. She found rather extensive

bruising in the fan-shaped muscle on the right side of the

head, which led her to form the opinion that the bleeding had

been caused by trauma "most likely on the right-hand side of

the head, particularly towards the top of the head, but the findings could have been contributed by blows to the face". In

cross-examination she said "I don't think you can say which blow had caused the death ..."; and "I think more than one blow

struck to the right hand side of the head or - and the top of the head". Later she said that a heavy blow would be needed, involving "a very significant degree of force, not just a light tap on the head".

On appeal the point taken by the appellant was that it was
for the prosecution to eliminate self defence under s.271 of

the Code, and to do so beyond reasonable doubt. Because there was a possibility that a single blow might have set in motion the chain of events that led to Turner's death, it was submitted that the prosecution had not proved the charge of manslaughter unless it identified the fatal blow or blows in question. Unless it succeeded in doing so, the Crown, it was said, failed to exclude beyond reasonable doubt the possibility that the particular blow or blows were rendered "lawful" by s.271 as a measure of self defence, with the consequence that the appellant was not guilty of unlawful killing constituting the offence of manslaughter under s.291 of the Code.

The appellant's submission encounters several difficulties of a factual nature. The first is that the jury might have rejected the appellant's account of what took place. His account was that it was Turner who struck the first blow or blows, so as to constitute the unprovoked assault said to

justify the appellant's punches as a form of self defence. If

his account was rejected, there was no evidence before the jury sufficient to raise a case of self defence which the Crown would bear the onus of excluding beyond reasonable doubt. The second difficulty is that it is by no means clear from the evidence of Dr Ashby that she was saying that death could have resulted from a single blow, as distinct from the cumulative effect of the series of blows which the appellant was proved to have inflicted on Turner's head and face.

Even assuming, however, that Dr Ashby's evidence was capable of bearing the interpretation contended for by the appellant, we do not consider that in the circumstances disclosed by the evidence before the jury, s.271 has the effect sought to be placed on it by the appellant. On the appellant's version of events, it is difficult to regard Turner's assault on him as one that was capable of giving rise to a belief on the part of the appellant, based on reasonable grounds, that he could not defend himself from death or grievous bodily harm except by using the degree of force that he did. The contrary was not suggested. The second limb of s.271 therefore was not available to him. According to the decision in R. v. Prow [1990] 1 Qd.R. 64, the first limb would nevertheless have been

available to the appellant on the manslaughter charge if the force he used to defend himself against Turner's alleged

assault on him was not intended, and was not such as to be likely to cause death, or grievous bodily harm. That death did

in fact result would not necessarily preclude reliance on the

first limb of s.271 if Turner's assault led to a fight in which

the appellant "delivered a blow of moderate severity, and ... there was an unexpected death" : R. v. Prow [1990" 1 Qd.R. 64, 66, per Thomas J.

Prow's case was, however, a manslaughter charge in which

in the course of a fist fight the appellant "got in a good one"

to the jaw of the victim, who went down, and then continued to be punched and kicked by the appellant. He later died from

subarachnoid haemorrhage. However, medical opinion in that case was that death was most likely the result of the blow on the jaw, and "the evidence was not sufficient to enable the jury to conclude that death was caused by the later acts of

kicking" ([1990] 1 Qd.R. 64, 65). The case was therefore one in which it was not only possible to identify the fatal blow,

but also to isolate it from the appellant's other actions as

the relevant act of self defence, or "force" used "to make effectual defence against the assault" within the terms of s.271. What the evidence here shows is an uninterrupted series of repeated blows, at least three to five in number, delivered in quick succession to Turner's head and face while the

appellant was holding him by the left shoulder. It is that series of blows, and not any single one of them, that constitutes the "force" used to make effectual defence against the assault (if any) by Turner; and it is that force that falls to be judged according to the criteria in the first limb of the section, including whether it was "reasonably necessary": cf. Biddle v. Dimmock (App. no. 136/1992; C.A. Aug. 19, 1992).

This ground of appeal therefore also fails. The appellant's contention that, for the purpose of excluding the operation of s.271, the prosecution was bound to identify a particular punch or punches as the fatal blow is not sustainable on the evidence before the jury at the trial. The learned trial judge was therefore correct in declining to direct the jury in the terms contended for.

The other principal ground of appeal was added as ground 6

by an amendment to which the Crown raised no objection.
Essentially it is that the directions of the trial judge to the
jury about the operation of the second limb of s.23 of the Code

were confusing and, in one or more respects, erroneous. The second limb of s.23 exempts a person from criminal responsibility for an event which occurs by accident. In the context of the present case, the event was the death of Turner.

Killing him, or causing his death, was what the appellant was charged with unlawfully doing. According to the decision of the Court in R. v. van den Bemd (1992) 70 A.Crim.R. 489, 493 (affd. (1994) 678 A.L.J.R. 199), the question, in a case like

this, is whether the death of Turner was "such an unlikely consequence" of the appellant's action in punching him "that an ordinary person would not reasonably have foreseen it".

We do not think that there should have been any real problem in putting that question to the jury in this case, or any great difficulty on the part of the jury in understanding what was meant by it. In R. v. Whiting (C.A. 324 of 1994; Oct. 10, 1994) the question succinctly put by the trial judge (who was Cullinane J.) at the end of his summing up in a manslaughter case, was in the form:

"Now in this case the elements of [manslaughter] would be : did the accused kill the deceased? If he did, was death such an unlikely consequence of his actions that a reasonable person would not have foreseen it?"

By contrast, in the present case the learned trial judge in his summing up presented the question in the form:

"Has the Crown persuaded you beyond reasonable doubt that the death was so unlikely a consequence that an ordinary reasonable person in the position of the accused would not have foreseen it occurring; or, to put it another way, that an ordinary reasonable person would have foreseen it as not a likely consequence. If you have a reasonable doubt, the killing is not unlawful on that basis. If you have no reasonable doubt, then you cannot conclude that it was not unlawful on that basis."

It was, as we see it, quite unhelpful to include in this part of the direction, or perhaps anywhere else in the summing up, a reference to the lawfulness or unlawfulness of the killing, or to reverse the form of the direction we have mentioned in the way that was done here.

Not surprisingly, the jury returned with a request for a
direction "in relation to death being a reasonably foreseeable

consequence of an action". In the course of responding to it, his Honour allowed a reference to death "or grievous bodily

harm" to slip into his direction. That was not warranted where

the charge was one of manslaughter like this. Then, in speaking of an "unlikely consequence", his Honour went on to say:

"It does not mean it has to be a likely consequence, but a not unlikely one, one that is a possibility ..."

The jury retired again, but were brought back once more to hear his Honour put the question in terms derived specifically from

R. v. van den Bemd. In doing so, he prefaced it by describing it as "the test of criminal responsibility under s.23".

After some further cogitation, the jury returned with another request for redirection, asking on this occasion whether the issue of death being an unlikely consequence of the action was to be examined "from the perspective of a [something] bystander". The foreman of the jury was, he said, not able to remember the missing word without having seen it; but after some reflection recalled it must have been

"imaginary". The expression "imaginary bystander" had been used earlier by the judge in summing up, and he then proceeded to explain its significance, concluding with the question:

"So would a reasonable person objectively viewing the events, in all the prevailing circumstances then existing, regard death as a reasonable possibility or likelihood, not necessarily a certainty, as distinguished on the other hand from something which is remotely possible, fanciful or conjectural?"

On appeal, several complaints were made about these

directions. One was that, as his Honour himself acknowledged

in the course of discussion with counsel at the trial, they

were "a bit confusing". Another was that in the course of some of them the onus, or perhaps it was the emphasis, had been reversed in explaining the phrase "so unlikely that an ordinary person would not have foreseen it". A third complaint was that his Honour had used the word "possibility", whereas the

direction in van den Bemd refers to the consequence in terms of
its being "unlikely" (70 A.Crim.R. 489, 493).

We think there is some substance in each of these complaints in the present case. It may be open to question whether the difference between probability and possibility is as widely appreciated by ordinary members of the public as it generally is by lawyers; but the distinction is a real one, and disregarding it in directing the jury in R. v. Crabbe (1985) 156 C.L.R. 464, 468-469, was a reason why the conviction in that case was set aside. See also R. v. Wilmot (No.2) [1985] 2 Qd.R. 413, 416. In the circumstances we do not think that the

verdict here can be allowed to stand.

It was suggested that it was now very difficult for a trial judge to sum up to a jury in the case of a charge of manslaughter which involved a question, or possible question, of self defence under s.271 of the Code. However, if close attention is given to eliminating what is not essential to the particular direction, we do not consider that such a complaint is justified. Here the first question to be decided was whether the appellant's blows caused Turner's death, whether directly or indirectly. The second was whether the death of

Turner was such an unlikely consequence of those blows that an ordinary person would not have foreseen it. The third question was whether the force of the appellant's blows was such as to be reasonably necessary to make his defence effectual against

any assault being carried out on him by Turner. On the evidence as it now appears in the appeal record, the assault (if any) by Turner on the appellant was quite unprovoked, so

that there was no occasion for including that element in the direction. The proviso to the first limb of s.271 was also

irrelevant, because the appellant was charged with

manslaughter. If, in punching Turner, he intended to cause death or grievous bodily harm, he would under s.301(1) of the Code have been guilty of murder, which is not the charge he faced.

In ordering the retrial of the appellant, as we propose to
do, we are not, in anything we have said about the questions

that fell to be considered, intending to bind the judge who presides at the further trial. For one thing, the evidence led at any future trial may, wholly or in part, differ from what it was before. But there is, we consider, an obligation on the trial judge to ensure that the issues to be determined by the jury in arriving at their verdict of guilty or not guilty are

simplified as much as possible, without injustice to either side, as to be comprehensible by them. The obligation is not one that is necessarily discharged by simply reading out to the jury in full various sections of the Criminal Code, which are

not all easy to absorb and understand without close study, the more so as they sometimes include matters not relevant to facts and issues at the particular trial.

A further matter raised by the notice of appeal is that there was a mistrial by reason of the Crown prosecutor's remark in the course of his closing address to the jury, that the appellant's credibility was affected by his interest in the outcome of the proceedings. This is the substance of ground 5 as amended, which in its original form complained that the trial judge had failed to direct the jury to disregard counsel's invitation to assess the appellant's evidence by reference to his interest. At the hearing of the appeal the original ground was abandoned, and the new matter of complaint substituted for it. It follows that anything the learned trial judge said, or did not say, on the subject of "interest" is no

longer relied on.

We have re-examined the judgments of the High Court in Robinson v. The Queen (No. 2) (1991) 65 A.L.J.R. 644 and Stafford v. The Queen (1993) 67 A.L.J.R. 510. In both decisions the reasons refer throughout to directions given by

the trial judge. In Stafford (67 A.L.J.R. 510, col. 2G), Deane J. also said it was preferable that a trial judge refrain from directing attention to the interest of the accused in the

outcome "as a relevant factor in assessing his or her evidence". From the context it is clear that his Honour was referring to the summing up or, in any event, to the trial judge and not to counsel.

Nothing that was said in either of those cases suggests that the prohibition against referring to the interest of an accused person in the outcome of criminal proceeding against him extends beyond the trial judge to include the advocates for the parties themselves. Indeed, in some of the cases in Queensland it has been remarks of counsel on the subject of the accused's interest that have prompted subsequent reference to the matter by the trial judge in summing up with a view to redressing any imbalance that might have resulted to the accused. If it had been impermissible for counsel to refer to the subject at all, one would have expected the Court in those cases to say so; but, until now, that has never been suggested, either in Queensland, or in the two decisions of the High Court, or in decisions in other States where Robinson has been considered. See, for example, R. v. Brotherton (1992) 29 N.S.W.L.R. 95, 97-99; and R. v. Webb and Hay (1992) 59 S.A.S.R. 563, 577, 581. In our view it would be a serious restriction on freedom of advocacy if it were not open to counsel to refer at all to a factor so critical to credibility as the interest of an opposing witness in the outcome of proceedings. The logical next step in the progression would be to forbid cross-

examination on the subject. The freedom is, of course, one that must, particularly in the case of counsel for the prosecution, always be exercised responsibly; but it was not suggested here that, in what he said in addressing the jury on this occasion, counsel had overstepped the limits of propriety or the bounds of legitimate advocacy.

For these reasons the appeal against conviction was allowed, and the conviction and verdict were set aside. A new trial has been ordered of the charge in the indictment against the appellant.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1994

Brisbane

Before Fitzgerald P.
McPherson J.A.
Davies J.A.

[R. v. Ellem]

T H E Q U E E N

v.

WARREN RONALD ELLEM

(Appellant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 16th day of December 1994

I have had the advantage of reading the reasons for judgment of the President and of McPherson J.A. I agree with the reasons given by McPherson J.A. for allowing the appeal and ordering a new trial. I also agree with his reasons with respect to each of the other grounds of appeal argued other than Ground 5 which contends that there was a mis-trial by reason of the remark of the Crown Prosecutor to the effect that the appellant's credibility was affected by his interest in the outcome of the trial.

The rationale of the High Court's view that a trial judge should refrain from comment on the interest which an accused has in the outcome of his or her trial as a relevant factor in assessing the reliability of that person's evidence is that to so comment would undermine the benefit to which the presumption of innocence gives to an accused person: Robinson v. The Queen (No.2) (1991) 65 A.L.J.R. 644 at 646; Stafford v. The Queen (1993) 67 A.L.J.R. 510. It is a logical, though I think unrealistic, consequence of this view that comment by the Prosecutor, or even cross-examination by him or her to that effect would also be objectionable for the same reason. But in the absence of any support given to that remark by the trial judge I do not think that, without more, it would have amounted to a mis-trial.

CATCHWORDSCRIMINAL LAW - MANSLAUGHTER - Self-defence - s.271 Criminal Code - Death caused by series of punches to head - Appellant claimed he was struck first - Whether Crown required to identify fatal blow in series to exclude self- defence beyond reasonable doubt.

CRIMINAL LAW - DIRECTIONS TO JURY - Manslaughter - 2nd limb of s.23 Criminal Code - Nature of van den Bemd direction discussed - Use of word "possibility" discussed.

CRIMINAL LAW - PROSECUTOR'S CLOSING ADDRESS - Reference to accused's credibility being affected by interest in outcome - Whether sufficient to cause mistrial.

Counsel:	R. Hanson Q.C., with him M. Burns for the appellant
R. Martin for the Crown