R v Floyd
[2001] VSCA 161
•26 September 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 290 of 1999
| THE QUEEN |
| v. |
| RODNEY IAN FLOYD |
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JUDGES: | ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 August 2001 | |
DATE OF ORDER: | 21 August 2001 | |
DATE OF REASONS: | 26 September 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 161 | |
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Criminal law – Conviction – Murder – Whether trial judge was required to leave manslaughter to the jury – No evidentiary basis for doing so.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr Dealehr | G.R. Campbell |
ORMISTON, J.A.:
The Court dismissed this application on 21 August 2001 and in doing so stated that its reasons would be delivered later. The reasons for my agreeing in that course and in dismissing the application are now set out in the reasons for judgment of O’Bryan, A.J.A. which are published today.
CALLAWAY, J.A.:
I, too, joined in the order made by the Court on 21st August 2001 for the reasons expressed by O’Bryan, A.J.A. Far from being in the interests of justice[1], it would have been positively mischievous for the trial judge to have invited the jury to consider the possibilities canvassed in argument at the hearing of the application. The jury were correctly instructed that, unless they were satisfied beyond reasonable doubt that the applicant himself shot the deceased, it was their duty to acquit him.
O'BRYAN, A.J.A.:
[1]Compare R. v. Kane [2001] VSCA 153 at [116].
The applicant was presented in the Supreme Court at Geelong in July 1999 charged with the murder of his brother Michael Floyd on a date unknown between 1 April 1997 and 31 May 1997. After trial, the jury found the applicant guilty of murder. From that verdict the applicant applied to the Court of Appeal for leave to appeal against conviction on the ground:
·the verdict is unsafe and unsatisfactory and against the weight of the evidence.
On 2 August 2001 the applicant made an application to the Court of Appeal, differently constituted from this Court pursuant to s.574 of the Crimes Act 1958, for an order that Robert Michael Crotty attend and be examined before a judge of the Trial Division. The court dismissed the application on 3 August.
On 17 August 2001 the Registrar, Court of Appeal, granted leave to amend the grounds of appeal by substituting for the unsafe and unsatisfactory ground the following two grounds:
· The failure by the trial judge to instruct the jury that the verdict of manslaughter was open to them denied the applicant the prospect of an alternative verdict which was available on the evidence thereby resulting in a miscarriage of justice.
· The failure by the trial judge to instruct the jury that an acquittal was open to them if they found that a person other than the applicant committed an act of manslaughter in circumstances where the applicant did not aid and abet denied the applicant the prospect of an alternative verdict which was available on the evidence thereby resulting in a miscarriage of justice.
When the appeal commenced the learned presiding judge invited Mr. Dealehr of counsel for the applicant to confirm that the unsafe and unsatisfactory ground would not be argued, which he did. Mr. Dealehr also confirmed that on instructions from his client and instructing solicitors he did not propose to argue a ground based on “fresh evidence” in the form of Robert Michael Crotty’s oral statements. Mr. Dealehr said that he would argue the two grounds granted by the Registrar on 17 August.
Because the grounds of appeal raise a discrete question of law founded upon a recent decision in the High Court: Gilbert v. The Queen[2] it is only necessary to provide a short summary of the facts.
[2](2000) 201 C.L.R. 414.
The facts
The applicant Rodney Ian Floyd and the deceased Michael John Floyd were brothers, the applicant being approximately eight years younger than the deceased. The brothers resided together in a jointly owned house situate at 80 Ruhamah Avenue, Bell Post Hill (“the house”). The deceased owned a rural property in Sailors Gully Road, Morrisons near Meredith (“the Meredith property”).
On 18 February 1998 the applicant was arrested by police and questioned about the location of the deceased. After initially stating that the deceased was living in Queensland the applicant ultimately gave an account of his brother taking his own life after a shooting accident at the Meredith property around Easter 1997. In 1997, Good Friday fell on 28 March. On 19 February the applicant directed police to an old mine shaft on the Meredith property where he had interred the deceased and the body was later exhumed with a number of items which were later subjected to forensic testing.
The police and forensic investigation later established that the deceased had been shot several times in his bed at the house. At the trial no issue was raised about the place of death.
The applicant was interviewed by police and maintained that the deceased accidentally shot himself at the Meredith property in somewhat bizarre circumstances and finally shot himself in the head deliberately.
The Crown relied in proof of the charge of murder upon a chain of circumstances of the shooting and disposal of the body, lies told by the applicant evidencing a consciousness of guilt and the existence of a motive for the murder. The motive presented was that the deceased stood in the way of the applicant pursuing his relationship with a female, Ebony Williamson. In this respect reliance was placed on a history of domination of the applicant by the deceased, of the deceased’s dislike of Williamson because the applicant indulged her with gifts of money and on the applicant’s extraordinary infatuation with Williamson.
The defence case was that Williamson shot the deceased in the house when the applicant left the house for a short time following a quarrel with her. Following the applicant’s return she told him that she had shot the deceased. At the time Williamson was a heroin addict, she had a history of violence and had a motive to kill the deceased to protect her relationship with the applicant and thus her access to money to feed her drug habit.
Following the alleged disclosure of the shooting the applicant cleaned up the house and removed the deceased’s body to Meredith where he disposed of the body and items of bedding in the mine shaft.
The Crown led evidence capable of disproving the defence case, including the contents of letters written by the applicant to Williamson from gaol.
The account of the shooting provided at the trial by the applicant emerged for the first time when the applicant gave evidence at the trial.
Before counsel addressed the jury, and in the absence of the jury, the trial judge said to counsel:
“It seems to me, firstly, that this is not a case where manslaughter needs to be left to the jury. It is a murder or nothing case and it is essentially, a who done it case. If the Crown fail to prove that the accused fired the fatal shots beyond reasonable doubt, well, that is the end of the matter it seems to me in terms of the principal charge. The next proposition is this that on the accused’s own evidence he must necessarily be guilty of assisting an offender and that alternative ought to be left to the jury, albeit that the Crown will be urging that is not a view of the facts the jury should take. They are the main matters in relation to the offence.”
Counsel for the defence, not Mr. Dealehr, and the prosecutor did not try to persuade the trial judge from the course he proposed in relation to not leaving manslaughter as an alternative to murder and in leaving “assisting an offender”, should the jury find that the applicant’s evidence was a probable view of the facts in relation to the death of the deceased.
In a final address to the jury counsel for the applicant did not raise manslaughter as an alternative to murder. He was quite content to rely upon submissions why the jury should find that Williamson shot the deceased when the applicant was absent from the house and had no knowledge of what she did or proposed to do.
The trial judge’s charge to the jury occupied almost two days. No exception was taken to his directions on matters of law by counsel for the applicant.
Early in the charge the trial judge made it clear to the jury that the issue for them was whether the accused murdered his brother by firing the fatal shots. His Honour said:
“Ebony Williamson is not on trial here. The ultimate question for you is whether Rodney Floyd murdered his brother. If you are satisfied beyond reasonable doubt of that, that he committed the offence by firing the fatal shots with the necessary murderous intent it is your duty to convict. If the Crown have failed to satisfy you beyond reasonable doubt that he did so it is equally your duty to acquit the accused.”
This clear direction can be expected to have led the jury to first concentrate attention upon whether the Crown had proved that the applicant fired the shots with the necessary murderous intent. It is fanciful to suppose that the jury ignored the direction and first concentrated attention upon whether Williamson fired the shots.
Later in the charge the trial judge gave the jury a definition of murder appropriate to the circumstances of the case and then explained the four elements of murder. His Honour added:
“There would appear to be no dispute that the actual shooting of Michael Floyd was a conscious voluntary act. Nor, as it seems to me, is it in dispute that whoever fired the two bullets into the deceased’s head, and the one into his body, must have done so with a murderous intent; that is, an intention to either kill Michael Floyd, or at the very least, to cause him really serious bodily injury.
Accordingly, it seems to me that the only real issue for your determination – although, as I say, it is a matter for you – but it seems to me that the only real issue is whether you are satisfied beyond reasonable doubt that Rodney Floyd fired the fatal shots.”
Once again, in emphatic terms, the trial judge invited the jury to consider as the only real issue whether they were satisfied beyond reasonable doubt that the accused fired the fatal shots.
Later in the charge the trial judge directed the jury’s attention to the matters relied upon by the defence in support of an acceptance as a reasonable possibility that Williamson, not the accused, fired the fatal shots. No exception was taken to the trial judge’s directions about the defence case.
Mr. Dealehr submitted that there was a miscarriage of justice because the learned judge in his charge should have left open to the jury the possibility that on the facts of the case it was open for them to find that the death of the deceased was caused by a person other than the applicant in circumstances that could have given rise to a verdict of manslaughter, or an acquittal if the jury were to find a person other than the applicant committed an act of manslaughter in circumstances where the applicant did not aid and abet.
Reliance for this submission was placed upon Gilbert v. The Queen[3].
[3](2000) 201 C.L.R. 414.
In Gilbert, the applicant, his brother and a third person were charged with the murder of Linsley who died as a result of a brutal assault. The case against the applicant was founded upon evidence that the brother committed the offence of murder and the applicant aided and abetted his brother. The applicant’s defence was that he did not know his brother intended either to kill or to inflict grievous bodily harm upon the victim and was not guilty of murder.
In the Court of Appeal of Queensland an argument that manslaughter should have been left as an alternative possible verdict was upheld, but notwithstanding the error the Court of Appeal dismissed the appeal against conviction on the ground that no substantial miscarriage of justice had occurred.
In the High Court, Gleeson, C.J., Gummow and Callinan, JJ. held that a rational jury, properly instructed, could have failed to reach the state of satisfaction necessary for a conviction of murder. McHugh and Hayne, JJ. dissented.
A matter not unimportant in the present appeal was referred to by Gleeson, C.J. and Gummow, J. in a joint judgment.
“The system of criminal justice, as administered by appellate courts requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.”[4]
[4]Gilbert at p.420 para.[13].
Their Honours qualified these words after consideration of statements made in Mraz v. The Queen[5]:
“These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences.”[6]
[5](1955) 93 C.L.R. 493.
[6]Gilbert at 421 para.[16].
The consequences referred to were a sentence of death following a guilty verdict which the jury may be reluctant to pronounce, if a lesser alternative were available. The merciful verdict, as it was known in the days of capital punishment, sometimes followed a direction as to manslaughter.
Their Honours referred[7] to a passage in the reasons delivered by Lord Tucker in Bullard v. The Queen[8], a decision of the Judicial Committee of the Privy Council:
“Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.”
[7]Gilbert at 422 para.[18].
[8][1957] A.C. 635 at 644.
These words are as apposite today as they were in 1957. The critical words for present purposes are: “if there is any evidence upon which such a verdict can be given.”
In Gilbert, it was not in issue that there was evidence at the trial upon which a verdict of manslaughter could be given. The issue on appeal was whether a substantial miscarriage of justice occurred because the lesser verdict was not left to the jury.
Since Gilbert was decided, the Court of Criminal Appeal in South Australia has considered and applied Gilbert in R. v. Gillard and Preston[9]. In the Court of Criminal Appeal in New South Wales Gilbert was distinguished in R. v. Phan[10]. Wood, C.J. at CL referred to the reasons expressed by Lord Tucker in Bullard to which I have referred and to the decision in Gilbert. His Honour observed:
“In order for manslaughter to be left, it appears to me, that the case must be one where there is an evidentiary basis for it, for example evidence that raises for consideration provocation or diminished responsibility, or where it is a case in which, absent proof of a specific state of mind required for murder, the act of the accused might answer the description of an unlawful and dangerous act.”
[9](2000) 78 S.A.S.R. 279.
[10][2001] NSW CCA 29 at 11.
The Chief Judge at Common Law noted that the case was fought at trial on a narrow basis, namely one of murder or nothing. In the context of the trial his Honour said:
“In the context of this trial the introduction of a possible verdict of manslaughter in the way explained would have been purely speculative and not something for which there would have been a valid basis on the evidence... In summary, the case was not one where there was any reasonable possibility of the lesser verdict of guilty of manslaughter being open. There was, therefore, no occasion for it to have been left. Indeed, it might have been disadvantageous to the applicant to have done so...”[11]
[11]R. v. Phan at p.12 para.[44].
Mr. McArdle, who appeared for the Crown, submitted that no direction was sought by the applicant’s counsel for an alternative verdict of manslaughter, even when the matter was raised by the trial judge.
Mr. McArdle further submitted there was no evidence upon which a manslaughter verdict would be available and, therefore, no reason or justification existed for such a direction.
In my opinion, this appeal is distinguishable from Gilbert and no evidentiary basis existed upon which a verdict of manslaughter could have been left to the jury. Had the trial judge left manslaughter upon the basis proposed by Mr. Dealehr and had the jury convicted the applicant of manslaughter the verdict could not stand in this court having regard to the evidence.
It is important to recall how this case was fought at trial and how the trial judge left the issue of murder to the jury with the approval of counsel. The real issue was whether the jury was satisfied beyond reasonable doubt that the applicant fired the fatal shots. The charge would have been erroneous had the trial judge invited the jury to find whether the accused or Williamson murdered the deceased and he didn’t do so. It was the defence case that he didn’t fire the shots and that he was told by Williamson that she did so when he was away from the house.
It would be speculative for the jury to consider a scenario where Williamson fired the shots when the applicant was present aiding and abetting her conduct and, either she did so with murderous intent while he was unaware of her intent, or was acting under provocation or caused death by an unlawful and dangerous act. Williamson was not on trial and save for her denial in the witness box that she had informed the applicant that she shot his brother and her denial that in fact she had done so, the jury was not given an account of the shooting in the house. What Williamson allegedly told the applicant about the shooting did not involve provocation or aiding and abetting or unlawful and dangerous act of manslaughter.
This is a case where this court is entitled to assume that the jury first considered whether the applicant fired the fatal shots. If not satisfied beyond reasonable doubt that the applicant fired the fatal shots the jury had no option but to find him not guilty of murder and proceed to consider the statutory alternative – assisting an offender.
There was no evidentiary basis for manslaughter and, in my opinion, no requirement for the trial judge to leave manslaughter to the jury.
At the conclusion of the hearing the court announced that the appeal should be dismissed and reasons would be published at a later date.
These are my reasons for dismissing the appeal on 21 August 2001.
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