R v Gardiner

Case [2013] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v GARDINER

[2013] SASCFC 53

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Nicholson)

14 June 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - EVIDENCE - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - BURDEN OF PROOF

Application for permission to appeal against conviction of murder after a trial by Judge alone – deceased died during a camping trip with the appellant - prosecution case based on circumstantial evidence of injuries suffered by the deceased - evidence of discreditable conduct of previous assaults by the appellant on the deceased - defence case was that the appellant and the deceased were both intoxicated at the time the injuries were inflicted and the requisite intent for murder was not proven.

Whether the Judge erred in finding it proven beyond reasonable doubt that the appellant had the specific intent for murder - whether the Judge erred in his approach to intoxication and specific intent - whether the Judge erred in finding that the prosecution had excluded all rational hypotheses consistent with innocence - whether the Judge erred in refusing to consider a defence of self-defence - whether the Judge erred in admitting evidence of the appellant's discreditable conduct.

Held (Peek J; Nicholson J agreeing): Appeal allowed - the matter of the appellant's intoxication was directly relevant to whether he in fact had formed the requisite specific intent for murder - the trial Judge erred in approaching the issue of intoxication by reference to incapacity to form that specific intent - this erroneously suggested that the appellant had to be incapable of forming the relevant specific intent and also tended to cast an onus on the defence to establish intoxication sufficient to negative specific intent - the correct approach is whether the prosecution have established beyond reasonable doubt that the appellant in fact possessed the requisite specific intent - there was a spectrum of alternative rational hypotheses consistent with the absence of the required intent to be considered and a finding of guilt could not turn solely on the probability or improbability of any one suggested hypothesis - the Judge was correct in concluding that there was insufficient evidence of self-defence to require or permit a defence of self-defence to be left to the tribunal of fact - the trial Judge did not err in admitting the evidence of discreditable…

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AGLC
R v Gardiner [2013] SASCFC 53
Case
[2013] SASCFC 53
Decision Date

CaseChat Overview and Summary

The case of *R v Gardiner* concerned an application for permission to appeal against a conviction for murder, following a trial by judge alone. The deceased died during a camping trip with the appellant. The prosecution's case relied on circumstantial evidence, including injuries sustained by the deceased and evidence of the appellant's prior assaults on the deceased. The defence argued that both parties were intoxicated at the time, and therefore the specific intent required for murder was not proven.

The central legal issues before the court were whether the trial judge erred in finding the appellant possessed the specific intent for murder beyond reasonable doubt, particularly in relation to the defence of intoxication. The court also considered whether the judge erred in his approach to excluding rational hypotheses consistent with innocence, and whether he wrongly refused to consider a defence of self-defence. The admissibility of evidence concerning the appellant's prior discreditable conduct was also challenged.

The Full Court, with Peek and Nicholson JJ agreeing, allowed the appeal. Their Honours held that the trial judge had erred in his approach to intoxication, by focusing on the appellant's *incapacity* to form the specific intent rather than the prosecution's failure to prove the *actual formation* of that intent beyond reasonable doubt. This approach had the effect of suggesting an onus on the defence to establish intoxication. The correct approach, they stated, is to consider whether the prosecution has proven the requisite specific intent, and to assess all rational hypotheses consistent with innocence. While the judge was correct in finding insufficient evidence for self-defence and in admitting evidence of prior conduct, the misdirection on intoxication rendered the conviction unsafe. A retrial for murder was ordered.

Orders

Orders of the court

Held (Peek J; Nicholson J agreeing): Appeal allowed - the matter of the appellant's intoxication was directly relevant to whether he in fact had formed the requisite specific intent for murder - the trial Judge erred in approaching the issue of intoxication by reference to incapacity to form that specific intent - this erroneously suggested that the appellant had to be incapable of forming the relevant specific intent and also tended to cast an onus on the defence to establish intoxication sufficient to negative specific intent - the correct approach is whether the prosecution have established beyond reasonable doubt that the appellant in fact possessed the requisite specific intent - there was a spectrum of alternative rational hypotheses consistent with the absence of the required intent to be considered and a finding of guilt could not turn solely on the probability or improbability of any one suggested hypothesis - the Judge was correct in concluding that there was insufficient evidence of self-defence to require or permit a defence of self-defence to be left to the tribunal of fact - the trial Judge did not err in admitting the evidence of discreditable conduct - retrial for murder ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

This ground is without substance and I would decline to grant permission to appeal.Ground 6 – Interpretation of medical evidence Ground 6 is as follows:6.It was not rationally open on the evidence to reject the possibility that the deceased’s injuries were the result of a drunken, and mutual, fight in circumstances where the applicant lacked a murderous intention and, in rejecting the possibility, the learned trial judge misdirected himself on:(i) the factual findings to be drawn from the medical evidence, (ii) the inferences to be drawn from the “conduct” of the applicant,(iii) the conclusions to be drawn from the above and the other circumstantial evidence. The primary contention advanced in support of this ground was that the judge had erred in his interpretation of the pathologist’s evidence and had drawn inferences in relation to the cause of a number of the injuries which were not available having regard to that evidence. Mr Vadasz argued that on a fair reading of the pathologist’s evidence a number of the injuries could be explained by falls, or an ongoing fight, or by the appellant having attempted to resuscitate the victim (of which there was no evidence). In my view these contentions mistake both the role of the pathologist in giving evidence and the role of the judge. It is no part of the role of a pathologist to draw general conclusions about how events might have unfolded, divorced from his examination of the body. If a pathologist is asked to express an opinion as to whether particular injuries might have been caused by complicated manoeuvres and unlikely sequences of events, all he can do is base his answers on the results of his examination. The trier of fact occupies a more advantageous position. Neither a judge nor a jury is obliged to accept the opinion of the pathologist to the effect that an injury might possibly have been caused in a particular way. The trier of fact may bring to bear on such a suggestion a deal of other relevant evidence quite outside the pathologist’s knowledge or expertise. As well, the trier of fact is entitled to have regard to questions of probability, that is, whether the scenarios put to the pathologist are so strained as to be inherently unlikely. In this case, the very number of injuries sustained by the victim made the likelihood of all or any them being accidentally caused, or caused in a fight followed by a fall or falls, to be unlikely. The fact that the pathologist had acknowledged that some of the injuries could have been sustained in a fall in no way bound the judge to such a conclusion. I would refuse permission to appeal on this ground.Ground 7 – Unsafe and unsatisfactory Ground 7 is as follows:7.The verdict is unsafe and unsatisfactory and against the weight of the evidence and the fair trial of the accused miscarried as a result of the above grounds considered separately, and/or, in combination. No additional arguments were put under this ground. I have considered the evidence before the judge and his comprehensive reasons for the finding of guilt. I have considered the evidence in light of the grounds of appeal and the argument advanced in support of them and have no misgivings about the verdict.

Decision

Reasons for decision

PEEK J
I would refuse permission to appeal on this ground.Conclusion For the reasons given above, I would make the following orders:1.Allow permission to amend the Notice of Appeal to incorporate the further amendments sought to be made during the appeal argument, namely to grounds 1 and 4, as reproduced in these reasons.2.Grant permission to appeal on ground 1 but refuse permission to appeal on grounds 2 to 7.3.Dismiss the appeal. Application for permission to appeal against a conviction of murder.PART 1: INTRODUCTION Mr Gardiner applies for permission to appeal against a conviction of the murder of Ms Katherine Dulcie Towner after a trial by Judge alone. Since it was clear that permission to appeal was not required, or is to be granted, on some at least of the proposed grounds of appeal, he will be referred to as the appellant. The appellant was born on 8 September 1979. As at the time of the present events at Easter 2011 he was 31 years of age and had been unemployed for about ten months, having last worked at the Strath Pastoral Meatworks in Strathalbyn between 11 June 2008 and 10 June 2010. Ms Towner (sometimes to be referred to as the deceased) was born on 1 November 1981 and was 29 when she died at Easter 2011. She was a single mother and had moved from Queensland to South Australia to live with her mother and her half brother at the end of 1999. Her son, who suffers from intellectual disabilities, was one month old at that time. The appellant and the deceased were in a sexual relationship for approximately 18 months leading up to the deceased’s death. That relationship, although on occasions characterised by love, affection, devotion, and sexual attraction (as evidenced by many text message exchanges between the two in evidence), was also beset by arguments and abuse, both verbal and physical. Over the course of the relationship, family members of the deceased noticed marked changes in her behaviour. The deceased had previously suffered from drug use problems but had given up drinking when she had become pregnant with her son, Shane Towner (well before meeting the appellant). Now she reverted to her previous behaviour. She became intoxicated, drinking alcohol to excess and using cannabis and other drugs. She had previously been seen as a caring and concerned mother but she more and more left her son to be cared for by her own mother. She had previously had a very close relationship with both her half brother and her mother, living together with both of them at various addresses until 2004 and 2009, respectively. Now, she gradually withdrew from her family, spending more and more time with the appellant who, about six months into the relationship, moved in with the deceased at her house at Victor Harbor. Friends of the appellant, and family members of the deceased, noted intense verbal altercations between the two, often accompanied by mutual intoxication. Some would last well into the night. Members of the deceased’s family and friends also began to notice signs of abuse, observing that the deceased had injuries to her face, such as black eyes and bruises, and other cuts and abrasions.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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