R v Gardiner - [2015] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GARDINER
[2015] SASCFC 107
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
5 August 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
The appellant was convicted of murder by trial by Judge alone in this court.
The appellant and the victim were in a domestic relationship. The appellant and the victim had camped in the appellant’s car on the side of a dirt road on the Easter weekend. The body of the victim was found in the car two days after she died once the police had been alerted by a friend of the appellant.
Evidence was led at trial as to the nature of the injuries that had been suffered by, and caused the death of, the victim. A medical expert gave opinion evidence concerning how the injuries occurred and the likely cause of death. The trial Judge accepted that evidence and concluded that the victim had been subjected to a severe beating. She was further satisfied that the appellant intended to cause grievous bodily harm.
Held (Per Kourakis CJ, Blue and Stanley JJ agreeing):
1. The trial Judge misstated part of the evidence of the medical expert but did not reason from that misstatement to reach her ultimate conclusion.
2. The trial Judge did not err in finding that the victim had suffered a severe beating. On all of the evidence the trial Judge did not err in finding that the injuries were inflicted with the requisite intention.
3. The trial Judge did not make impermissible use of post-offence conduct of the appellant.
4. The applicant’s grounds of appeal were reasonably arguable. Permission to appeal is granted.
5. Appeal dismissed.
R v Gardiner [2013] SASC 206, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Intention", "Murder", "Intention to commit grievous bodily harm", "Circumstantial evidence", "Medical evidence", "Relationship evidence", "Post offence conduct"

R v GARDINER
[2015] SASCFC 107
Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: Over the Easter long weekend in 2011 the applicant and his then girlfriend, Ms Towner, “camped” in Ms Towner’s car on the side of a dirt road near Strathalbyn. Ms Towner died sometime after 8.30am on Saturday 23 April 2011 and before 11.40am on Sunday 24 April 2011. The applicant and Ms Towner were aged 30 and 29 respectively at the time of Ms Towner’s death.
On Sunday 24 April 2011, the applicant made several attempts to call Mr B and finally spoke to him at 11.40am. He told Mr B that on waking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gardiner

Details

AGLC: R v Gardiner [2015] SASCFC 107
Case: [2015] SASCFC 107
Decision Date: 5 August 2015

CaseChat Overview and Summary

The case of *R v Gardiner* involved an appeal against a conviction for murder. The applicant, Gardiner, was convicted of murder by a judge sitting alone. The dispute centred on whether the applicant had the necessary intention to cause grievous bodily harm at the time he inflicted the fatal injuries upon the deceased, Ms Towner. The appeal was heard in the Supreme Court of South Australia by Kourakis CJ, Blue and Stanley JJ.

The primary legal issue before the court was whether the trial judge had erred in finding that the applicant possessed the requisite intention to cause grievous bodily harm, a necessary element for a murder conviction. This involved an assessment of the evidence, particularly the nature and extent of the deceased's injuries, and whether the circumstantial evidence, including the applicant's conduct and statements, supported the inference of such an intention. A secondary issue concerned the trial judge's alleged misapprehension of expert medical evidence.

The court considered the extensive injuries sustained by Ms Towner, as detailed by the pathologist, Dr Langlois, which included multiple fractures, a lacerated liver, and significant internal bleeding. The court found that these injuries were inconsistent with any accidental cause or self-defence, and were instead the result of multiple applications of moderate to severe force, amounting to a severe beating. The court also noted the applicant's false claim to have called an ambulance, which, coupled with his failure to do so despite awareness of the severity of Ms Towner's condition, supported an inference of guilt. The court held that even if the applicant was intoxicated at the time, a drunken intention to cause grievous bodily harm was still a legally recognised intention. The court dismissed the appeal, finding the verdict to be reasonable and supported by the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On the third ground of appeal, I would hold that the Judge correctly used the applicant’s false claim to have called an ambulance as disclosing that he was aware how badly Ms Towner was injured and his actual failure to call the ambulance, notwithstanding that awareness, as supporting an inference that he had beaten Ms Towner with the requisite intention.The Relationship Evidence The applicant and the deceased commenced their relationship in 2010. After the commencement of that relationship, Ms Towner was often seen with bruises, black eyes, cuts and abrasions. The applicant was charged with assaulting Ms Towner in late 2010 and was taken into custody. He was released on 7 January 2011 only to be taken into custody again on 18 February 2011 on a further charge of assaulting Ms Towner. On his release following that arrest, he went to live with Mr B and others at South Terrace in Strathalbyn. On 5 April 2011, the applicant was taken into custody again for breaching his bail but released several days later on 8 April 2011. Even though it was a condition of his bail that he not approach Ms Towner, he and Ms Towner resumed their relationship. It was because the other occupants of the South Terrace home refused to allow the applicant and Ms Towner to stay together in their home in breach of his bail conditions that the applicant and Ms Towner decided to camp on the side of the road over the Easter long weekend. Dr Langlois’ description of the injuries By reason of both the nature of the prosecution case at trial and the grounds of appeal, it is necessary to summarise the evidence of Dr Langlois at some length. Dr Langlois arrived at the scene on 26 April 2011 when it was darkening but artificial lighting had been brought in. He was at the scene for one to two hours. Dr Langlois observed indications of decomposition and no signs of rigor mortis, suggesting to him that death had occurred more than 72 hours earlier. Dr Langlois testified that it was possible the deceased died outside the vehicle and was later placed inside. The injuries observed on the deceased by Dr Langlois were summarised in the Judge’s reasons for verdict as follows:[1][1] R v Gardiner [2013] SASC 206 at [27].[27]The number of injuries observed on Ms Towner’s body was indeed significant. After excluding a significant number of potential injury sites which were also consistent with the effects of decomposition, Dr Langlois was satisfied that the following injuries he documented were true injuries or the effects of injuries as opposed to artefacts of decomposition: 2a. Spotty haemorrhage within the right temporalis muscle;2b. Haemorrhage 3 centimetres in diameter on reflection of the scalp in the midline of the superior aspect of the forehead;2c. Haemorrhage 3 centimetres in diameter under scalp above left ear;3. Thin film of subdural haemorrhage over brain with subarachnoid blood. Multifocal APP staining in the anterior, middle and posterior corpus callosum;4. Bruising 1.5 centimetres in diameter overlying the left angle of the jaw;6a. Haemorrhage into the superior third of the left sternocleidomastoid muscle;6b. Haemorrhage 2.5 x 2.5 centimetres in the clavicular head of the right sternocleidomastoid muscle;6c. Old fracture of the right greater horn of the hyoid bone with overlying haemorrhage 1 x 2 centimetres;8a. Haemorrhage 1 centimetre near the insertion of the 3rd rib into the right side of the sternum;8b. Haemorrhage, 1 centimetre, around the right 3rd rib in the mid-clavicular line where the rib was fractured;8c. Fractures of the 5th to 7th ribs in the right anterior clavicular line;8d. Haemorrhage over the 6th and 7th ribs in the right anterior clavicular line;8e. Haemorrhage in the intercostal muscles between the 8th to 10th ribs in the left anterior axillary line to the right mid-axillary line in the inner aspect of the thoracic cage in the area 8 x 13 centimetres; 8f. One litre of blood with some clot within the abdominal cavity;8g. Focally full-thickness 7 centimetre laceration of the inferior portion of the left lobe of the liver, 2.5 centimetres left of the midline;8h. Around region of retroperitoneal reflection of descending colon before the origin of the sigmoid colon haemorrhage 2 x 8 centimetres;8i. Deep haemorrhage overlying pubic symphysis extending into the left and right iliac fossa regions;9. Ill-defined dark discolouration in area 4 centimetres across around the medial epicondyle region of right elbow with 1 x 2 centimetres area of abrasion;10. Subcutaneous bruising 1 centimetre under skin of metacarpophalangeal joint (knuckle) right index finger;11. Over superior aspect of left shoulder green area 3 x 2 centimetres with subcutaneous haemorrhage; 13. Ill-defined green discolouration of posterior left upper arm, immediately above elbow;14. Around mid-height of left forearm on flexor surface orange-brown discoloured area 3.5 x 1.5 centimetres;15. On the anterior and lateral aspects of the proximal half of the right thigh purple areas 2 centimetres to 4 centimetres across;19. On lateral aspect of the right ankle 3 centimetres in diameter red area;24. Red discolouration of the skin and parchmented abrasions over the proximal two-thirds of the anterior aspect of left lower leg;25. On lateral aspect of mid-height of left lower leg 10 centimetre vertical abrasion;27. On anterior aspect of left ankle 0.1 x 0.3 centimetre abrasion; 29a. Bruising 2.5 centimetres in diameter under skin, above top aspect of right shoulder blade;29b. Bruising 9 x 9 centimetres under skin between shoulder blades; and29c. Broad band of bruising under skin of back across the width of the flank (between the lower costal margin and top of the pelvis).

Decision

Reasons for decision

The Judge’s essential reasoning in support of her conclusion that the applicant inflicted the injuries causing death with an intention to cause grievous bodily harm are set out below. I have underlined the particular sentences on which the disposition of the second ground of appeal critically depends.[36]In addition Dr Langlois observed that the liver had been lacerated. There was a seven centimetre tear which had gone through the full thickness of the liver (8g). In association with that laceration was about one litre of blood contained with the abdominal cavity (8f). Dr Langlois opined about two possible mechanisms for the cause of the liver injury. One was that it was a result of an application of compressive force over a larger area of the deceased’s body. The other potential mechanism was a more direct force such as a kick, punch or stomp. I consider that the effect of his evidence is that either of those mechanisms would have required the application of severe force....[45]He agreed in cross-examination that there was really no way of telling if the injury to the liver started as a bruise or a small tear but said that the end result was a major tear. In his view the presence of acute inflammatory reaction in the liver indicates that there was a period of time between the injury to the liver and Ms Towner’s death. Given the unknown variables involved, the pathologist was unable to be any more specific than to give a range of approximately at least one hour of survival up to 12 hours of survival after the infliction of the liver injury.…[180]Having examined carefully the evidence of Ms Towner’s extensive injuries in the context of the whole of the evidence I find that each and every one of the scenarios put to the pathologist amount to nothing more than hypothetical speculation which gains no support from the evidence. The koala hugging the tree example in particular is mere conjecture. …[174]The nature and extent of the deceased’s injuries are such as to exclude any reasonable possibility that they were inflicted in the course of the accused defending himself. At the time of her death Ms Towner weighed 54 kilograms. The accused weighed 90 kilograms. The accused sustained no serious injury. All the doctor observed on the accused on 26 April 2011 was minor scratches. For the reasons I have earlier explained I do not accept there is any reasonable possibility that the mark observed on the accused’s neck was a bite mark, notwithstanding Dr James’ rational concession on the basis of the material she then had. In any event I reject that possibility. It is preposterous, given Ms Towner’s behaviour on earlier occasions, to suggest that the most severe injuries observed on her torso were caused by the scenario put to Dr Langlois which he referred to as “the koala hugging the tree” scenario. The passage from Dr Langlois’ evidence explaining that scenario illustrates what a complex, choreographed scenario would have been required to produce those injuries from a fall in the manner suggested. In my view, there is not a shred of evidence to support that hypothetical scenario. ...[186]At the commencement of the trial the accused pleaded not guilty to murder but guilty to manslaughter. I infer from that plea that the accused admits responsibility for the first element of the crime of murder namely that he inflicted the injuries which caused Ms Towner’s death.[187]Even without that admission the circumstantial evidence satisfies me beyond reasonable doubt that it was the accused who was the author of the injuries which caused the death of Ms Towner.[188]I find beyond reasonable doubt:· The accused was the person who inflicted the injuries on Ms Towner on 26 August 2010, 18 February 2011 and on the other occasions referred to by the witnesses Sean Towner, Jesse Jeisman, Gail Hopkins and Sean Jones. …· The accused and Ms Towner left to go camping on Thursday 21 April 2011. · Ms Towner was still alive on Saturday morning 23 April 2011 at around 8.30 am when Mr McAnaney made his observations. I find that the accused and Ms Towner were alone camping near Strathalbyn for a minimum of two nights, namely Thursday and Friday night, before Ms Towner met her death.· Neither the accused nor Ms Towner returned to Strathalbyn to replenish alcohol stocks before Ms Towner died. · Ms Towner died sometime after 8.30 am on Saturday 23 April 2011 and before 11.40 am on Sunday 24 April 2011.· The accused was at the relevant time alcohol dependent and in the months leading up to the death of Ms Towner he regularly drank to excess to the point where he sometimes passed out. · The accused even when intoxicated and with a blood alcohol level as high as 0.3 has demonstrated an ability to perform conscious, voluntary and purposeful actions.· There is no reasonable possibility that at the time when the accused inflicted the injuries which caused Ms Towner’s death that he was in such a catatonic state due to alcohol and or drug consumption that his consciousness was impaired by self-induced intoxication to the point of criminal irresponsibility. · The accused spoke to Mr Brumfield and Ms Stevens at 11.40 am on Sunday 24 April 2011. He told them that the lips of the deceased were blue and that she had no pulse. He told them he had called an ambulance and that it had not arrived.· No call to the ambulance was ever made by the accused. · The deceased sustained multiple injuries referred to in P27 described by Dr Langlois. · The injuries which caused the death of Ms Towner were caused by applications of force ranging from mild to moderate to severe.· The injuries were not caused by a single application of force but by multiple applications of force.Conclusion [189]Ms Towner suffered multiple injuries to her head, neck, torso, front and back. Leaving aside the minor cuts, abrasions and bruising on the legs, a number of those injuries must have been caused by moderate to severe applications of force including in particular the rib fractures and the injury to the liver and colon. As I have noted earlier the injuries to the head involved injuries on three different planes. Ms Towner’s death was caused by a combination of the severe injuries which included the head injuries, the rib fractures and the lacerated liver. The most significant was the lacerated liver and there was evidence that the deceased had lost at least one litre of blood. In the end I consider that an application of plain common sense to the evidence requires rejection of the hypothetical scenarios put to Dr Langlois including in particular the koala hugging the tree scenario as a reasonable possibility explaining the bulk of the injuries seen on Ms Towner’s torso. As far as I have grasped it, the law in this State has not yet evolved to the point where trial judges sitting alone, are no longer permitted to apply common sense to the evaluation of the evidence before them. In my view, having assessed the whole of the evidence, the injuries seen on Ms Towner are inconsistent with anything other than a severe beating.[190]I have considered whether the evidence raises a doubt in my mind whether the inference that the accused intended to cause grievous bodily harm should be drawn. Having considered the whole of the evidence it is my view, contrary to the submissions of Mr Vadasz, that I can draw that inference. It is my view that the natural inference arising from the nature and extent of the injuries observed on Ms Towner is that whoever inflicted them intended at the very least to cause Ms Towner grievous bodily harm. That inference arises from my finding beyond reasonable doubt that the injuries were caused by multiple applications of force including moderate to severe force. [191]Even though the accused was likely to have been intoxicated at the time when he inflicted those injuries I am satisfied that he intended at the very least to cause her really serious bodily harm. There are far too many injuries on too many vulnerable parts of the body for there to be any reasonable possibility that even a man in a drunken state as the accused likely was, did not appreciate that his actions would cause really serious bodily harm to Ms Towner. A drunken intention to cause grievous bodily harm is nevertheless an intention. There is no reasonable possibility that in subjecting Ms Towner to what I find to have been a severe beating he did not intend to cause her grievous bodily harm. He may well have very quickly regretted his actions however that is beside the point. (Emphasis added)Ground 2 – Misapprehension of Dr Langlois’ evidence

Ratio Decidendi

Legal Principle Established

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