R v Gardiner - [2013] SASC 206

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GARDINER
Criminal Trial by Judge Alone
[2013] SASC 206
Judgment of The Honourable Justice Kelly
24 December 2013
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 - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - REBUTTAL OF POSSIBLE DEFENCE - PARTICULAR CASES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - ACCIDENT
The accused was charged with the murder of his partner who had died during a camping trip with the accused - accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by judge alone - the prosecution case was circumstantial - the defence case was that the accused was intoxicated at the time the injuries were inflicted and the requisite specific intent for murder was not proven.
Whether evidence of discreditable conduct admissible - whether probative value of the evidence of discreditable conduct substantially outweighs prejudice to the accused - whether prosecution proved beyond reasonable doubt that the accused had the specific intent for murder - whether prosecution excluded all rational hypotheses consistent with innocence.
Held:
(1) The accused is guilty of murder.
Evidence Act 1929 (SA) s 34P; Criminal Law Consolidation Act 1935 (SA) s 268, s 269(1), referred to.
The Queen v O'Connor (1980) 146 CLR 64; Wilson v The Queen (1970) 123 CLR 334, applied.
R v Gardiner [2013] SASCFC 53; Makin v Attorney-General (New South Wales) [1894] AC 57; R v Duke (1979) 22 SASR 46; Barca v The Queen (1975) 133 CLR 82; Festa v The Queen (2001) 208 CLR 593, discussed.

R v GARDINER
[2013] SASC 206
Criminal: Trial by Judge Alone
KELLY J.
Introduction

Jason Lee Gardiner is charged with the crime of murder. The particulars of the charge against him are that between the 20^th day of April 2011 and the 27^th day of April 2011 at Strathalbyn he murdered Katherine Dulcie Towner. Upon his arraignment the accused pleaded not guilty to murder, but guilty to the offence of manslaughter.
I make some general comments first before proceeding to deal with the evidence before me.
In considering the issues which arise for determination I have at all times borne in mind that the accused does not have to prove he is innocent. The accused is not to be convicted unless and until I am satisfied beyond reasonable doubt of his guilt on this charge.
The case against the accused is entirely circumstantial. Therefore I…

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 [2013] SASC 206
Case: [2013] SASC 206
Decision Date: 24 December 2013

CaseChat Overview and Summary

The case of R v Gardiner involved the prosecution of the accused for the murder of his partner during a camping trip. The accused pleaded not guilty to murder but guilty to manslaughter and opted for a trial by judge alone. The prosecution's case was based on circumstantial evidence, whereas the defence argued that the accused was intoxicated at the time of the injuries and lacked the requisite intent for murder. The court was tasked with determining the admissibility of discreditable conduct evidence, whether the prosecution proved beyond reasonable doubt that the accused had the intent for murder, and whether the prosecution excluded all rational hypotheses consistent with innocence.

The court considered the legal principles surrounding the admissibility of discreditable conduct evidence and whether its probative value outweighed any prejudicial effects. The court found that the evidence of the accused's prior violent conduct towards the deceased was relevant and admissible as it rebutted the defence's claims of self-defence or accident. The court also examined whether the prosecution proved the accused's intent for murder, concluding that the accused's actions and the nature of the injuries inflicted on the deceased demonstrated a deliberate and voluntary act with the intent to cause death or grievous bodily harm. The court rejected the defence's hypothetical scenarios as unreasonable explanations for the injuries sustained by the deceased.

The court concluded that the accused was guilty of murder as the evidence established beyond reasonable doubt that the accused deliberately and unlawfully caused the death of the deceased with the intent to kill or cause grievous bodily harm. The court found the accused's intoxication did not negate his criminal responsibility, as he was still capable of conscious, voluntary, and purposeful actions. The court further found that the accused's actions during and after the incident were consistent with a person aware of their actions and the consequences thereof.

In summary, the court found the accused guilty of murder, rejecting the defence's arguments of accident or lack of intent. The court's decision was based on a thorough evaluation of the evidence, including the accused's prior conduct, the nature of the injuries, and the circumstances surrounding the incident. The court's findings demonstrated that the prosecution had successfully proven all the elements required for a murder conviction beyond reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

The crime of murder is committed when a person deliberately and unlawfully causes the death of another person while at the same time intending to cause death or grievous bodily harm. That is the general proposition. The matters which the prosecution must prove beyond reasonable doubt therefore are:1That the act or acts of the accused caused the death of Ms Towner;2That the act or acts of the accused which caused the death were voluntary and deliberate, that is to say that they were the result of the exercise of the accused’s will and were not the result of an accident;3The act or acts of the accused which caused the death were carried out with the intention of either killing Ms Towner or at the very least causing Ms Towner grievous bodily harm. By the term grievous bodily harm I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out; and4Finally the killing was done without any lawful justification or excuse such as lawful self‑defence. Background The accused and deceased had been in a relationship since early 2010. At that time, they were 30 and 29 years of age respectively. At the beginning of the relationship, the accused worked as slaughterman at the local meatworks, Strath Pastoral Pty Ltd. He had held down this job since June 2008. The deceased was studying at TAFE and caring for her son, Shane Towner, who was approximately 11 years old and suffered from Asperger syndrome. The deceased cared for Shane with the support of her mother, Gail Hopkins and brother Sean Towner. Ms Hopkins described her relationship with the deceased at this time as a “normal, mother and daughter relationship”. They had ups and downs, but got on fairly well. Mr Towner described his relationship with his sister as a close one, “we always spoke and did everything together”. The accused ceased employment at Strath Pastoral on 10 June 2010. At some point after this, the accused and deceased started living together at 142 Canterbury Road, Victor Harbor. Mr Towner said that from this point, he started seeing less of his sister. The deceased’s relationship with her mother also deteriorated somewhat. Over the course of this relationship, the accused was incarcerated on three separate occasions. The deceased made numerous visits to the prison over this period, including on Christmas, Boxing and New Year’s days. The accused was first incarcerated on 26 August 2010 for a charge of aggravated assault causing harm. He was released on bail on 7 January 2011. The case was subsequently dismissed for want of prosecution because, though summonsed, the complainant, Katherine Towner, failed to attend court. A month and a half later, on 18 February 2011, the accused was again incarcerated in relation to allegations of assault of the deceased. On 21 February 2011, he was released on bail. He came to live at 31 South Terrace, Strathalbyn after nominating it as his place of residence for the purposes of bail. The accused lived there with David Brumfield, a friend and previous workmate from Strath Pastoral, Mr Brumfield’s partner Kelly Stevens, and another Strath Pastoral worker, Grantley Hull. The accused was again placed in custody on 5 April 2011, for breaching the said bail agreement. He was released on 8 April 2011 and continued to reside at 31 South Terrace.

Evidence

Evidence Before The Court

I deal briefly with that evidence now in the order referred to in the Notice.1a) Evidence of the relationship between the accused and the deceased, including uncharged acts of violence by the accused against the deceased Under this heading the prosecution relied on evidence of injuries and bruising seen on the deceased at various times and by various witnesses in the year preceding her death in April 2011. This evidence was said to be relevant to proving the nature of the relationship between the accused and the deceased, namely that it was a violent one in which, on the prosecution case, the accused inflicted a number of injuries on the deceased, including quite severe injuries inflicted on 26 August 2010 and 18 February 2011. There were other instances of alleged violence before and after those dates, however the two most serious occasions led by the prosecution were 26 August 2010 and 18 February 2011. In submitting that the evidence ought to be admitted, the prosecution argued that the evidence sought to be led tended to rebut any suggestion that the accused had acted in self-defence or that the death of Ms Towner was an accident. The evidence included evidence of family and friends, police, counsellors and doctors who had observed Ms Towner exhibiting a number of bruises, marks and behaviours consistent with having been injured by the accused. On those occasions no one observed injuries other than minor scratches and abrasions on the accused. This suggests that whatever the nature of the altercation between the accused and the deceased, Ms Towner always came off with significantly more serious injuries than the accused. Allied to that evidence was the evidence of the arrest and incarceration of the accused who was subsequently bailed after those incidents. This material was also relevant to explaining the relatively clandestine nature of the relationship between the accused and Ms Towner at least after 7 January 2011, which was when the accused was first released on bail and not permitted to contact Ms Towner. Some of this evidence was also relevant insofar as it demonstrated some aspects of the accused’s state of mind during the relationship in that it was always as a result of a report made by Ms Towner that the accused was arrested and gaoled. This happened on at least three occasions during their relatively short relationship. The evidence was said to be relevant and important to explaining the overall toxic relationship between the two, which was punctuated by verbal arguments, usually after drinking, and sometimes resulted in the infliction of serious injuries and the subsequent arrest of the accused. It goes some way to explain the complexity of the “love hate” relationship between the accused and deceased. It was also said to be relevant to any evaluation of the evidence as a whole, including the evidence of Mr Brumfield and Ms Stevens and their apparent lack of knowledge or interest about where the accused and Ms Towner were over the Easter weekend in 2011.

Decision

Reasons for decision

KELLY J

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 held down regular employment at Strath Pastoral Pty Ltd from 11 June 2008 to 10 June 2010. ·The accused was taken into custody following the 26 August 2010 incident. On that occasion he spent 134 days in custody. The accused was arrested on 18 February 2011 for assault.·The accused was living separately from the deceased from 18 February 2011 to Thursday 21 April 2011 as his bail conditions provided. He breached that condition on some weekends and over the Easter weekend 2011.·It was a condition of the bail granted to the accused after the complaint of 18 February 2011 that he not contact the deceased. The accused breached this bail condition at Unit 2, 3 Elliot Avenue, Hayborough on 2 April 2011. He was arrested for this on 5 April 2011 and spent three days in custody before again being granted bail by a magistrate on 8 April 2011.·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 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.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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