R v Ghassibe

Case [2023] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v GHASSIBE

Criminal Trial by Judge Alone

[2023] SASC 141

Reasons for the Verdict of the Honourable Auxiliary Justice Peek  

6 October 2023

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

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

Accused charged with murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA) – accused pleaded not guilty to murder but guilty to manslaughter and elected to be tried by Judge alone – whether the prosecution proved beyond reasonable doubt that the accused had the specific intent for murder – whether the prosecution excluded the defences of self-defence or defence of another – whether manslaughter by unlawful and dangerous act is proven on the evidence.

HELD: The accused is not guilty of murder but guilty of manslaughter.

Criminal Law Consolidation Act 1935 (SA) ss 11, 15, referred to.

Wilson v The Queen (1992) 174 CLR 313; Pemble v The Queen (1971) 124 CLR 107; R v Perks (1986) 41 SASR 335; R v Shinner (1993) 173 LSJS 384; R v Williams (1999) 205 LSJS 472; R v Wingfield (1994) 176 LSJS 14; R v Lavender (2005) 222 CLR 67, applied.

Bellchambers v The Queen (2008) 189 A Crim R 298; Broadhurst v The Queen [1964] AC 441; Herbert v The Queen (1982) 6 A Crim R 1; R v Ball, Bunce & Calliss (1991) 56 SASR 126; R v Coleman (1990) 19 NSWLR 467; R v Esposito (1998) 105 A Crim R 60; R v Helmhout (1980) 1 A Crim R 103; R v Kamipeli [1975] 2 NZLR 610; R v Martin (1983) 32 SASR 419; R v O’Connor (1980) 146 CLR 64; R v Singh [1993] SASC 4109; Thomas v The Queen (1960) 102 CLR 584; Viro v The Queen (1978) 141 CLR 88, discussed.

R v GHASSIBE

[2023] SASC 141

PART A: INTRODUCTION

The critical time period

PART B: DIFFERENCES BETWEEN MURDER AND MANSLAUGHTER

PART C: OVERVIEW OF SOME OF THE EVIDENCE

Credibility and reliability of witnesses

PART D: THE DECEASED’S AGGRESSION TOWARDS THE TAXI DRIVER AND THE ACCUSED

The evidence of Mr Gill (the taxi driver)

The evidence of Ms Trish Estaniel

PART E: THE PERIOD FROM THE DECEASED GRABBING THE ACCUSED’S SHIRT TO THE ACCUSED FALLING TO THE ROADWAY

The evidence of Mr Gill (the taxi driver)

The evidence of Ms Trish Estaniel
The evidence of Ms Nisha Ali

PART F: THE DEATH OF THE DECEASED

The evidence of Dr John Gilbert

The evidence of Dr Christopher Ovenden

PART G: THE ACCUSED’S TWO POLICE INTERVIEWS

PART H: THE ACCUSED’S MENTAL STATE AT THE CRITICAL TIME

Impulsive acts - the effect of a state of stress or emotion on mental state

The effect of intoxication by alcohol and illicit drugs

The evidence of Professor Jason White

Intoxication by alcohol and cocaine – legal…

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Details
AGLC
R v Ghassibe [2023] SASC 141
Case
[2023] SASC 141
Decision Date

CaseChat Overview and Summary

In the case of R v Ghassibe, the defendant was charged with the murder of the deceased, an incident that took place at a service station in Adelaide. The defendant was found guilty of manslaughter by unlawful and dangerous act but was acquitted of murder. The central legal issue before the court was whether the defendant had the requisite specific intent to kill or inflict grievous bodily harm at the time of the incident, an essential element for a conviction of murder under South Australian law. The court examined the evidence, including CCTV footage and witness testimonies, to determine the defendant's state of mind and the impact of his intoxication by alcohol and cocaine on his actions. The court concluded that while the defendant intended to forcefully put the deceased to the ground, there was insufficient evidence to establish beyond reasonable doubt that he possessed the specific intent necessary for a murder conviction.

The reasoning of the court was heavily influenced by the principles established in prior cases concerning intoxication and its impact on the formation of intent. The court emphasised that the prosecution must prove beyond reasonable doubt that the defendant acted with the requisite specific intent for the crime of murder, as opposed to merely having the capacity to form such an intent. The court considered the cumulative effects of stress, alcohol, and cocaine on the defendant's behaviour, as well as the temporary impairment of his vision due to an injury to his left eye. The court found that these factors could have led to impulsive actions without the presence of murderous intent. Furthermore, the court held that the defendant's kick, although an unlawful act, was not reasonably proportionate to the threat he perceived, thus excluding a full defence of self-defence. Additionally, the court determined that the kick was a dangerous act, exposing the deceased to an appreciable risk of serious injury, satisfying the criteria for manslaughter by unlawful and dangerous act.

In conclusion, the court found the defendant not guilty of murder but guilty of manslaughter. The court's decision hinged on the lack of evidence to establish the defendant's specific intent to kill or inflict grievous bodily harm, despite acknowledging the defendant's unlawful and dangerous act. The court did not find it necessary to determine whether the prosecution had disproved a partial defence reducing murder to manslaughter under the Criminal Law Consolidation Act 1935 (SA) s 15(2). The defendant was accordingly convicted of manslaughter by unlawful and dangerous act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The second important matter is that there is an important distinction between “capacity to form a specific intent” on the one hand and actually forming that specific intent on the other hand. The correct position is that the onus lies squarely upon the prosecution to prove beyond reasonable doubt that the accused committed the relevant act while actually holding the requisite specific intention for the crime of murder. This is to be contrasted with merely having an ability or capacity to form such an intent.[12][12] Thomas v The Queen (1960) 102 CLR 584; Broadhurst v The Queen [1964] AC 441; R v Kamipeli [1975] 2 NZLR 610; Viro v The Queen (1978) 141 CLR 88; R v Helmhout (1980) 1 A Crim R 103; R v O’Connor (1980) 146 CLR 64); Herbert v The Queen (1982) 6 A Crim R 1; R v Perks (1986) 41 SASR 335; R v Martin (1983) 32 SASR 419; R v Coleman (1990) 19 NSWLR 467; R v Ball, Bunce & Calliss (1991) 56 SASR 126; R v Singh [1993] SASC 4109; R v Esposito (1998) 105 A Crim R 60; R v Williams (1999) 205 LSJS 472; Bellchambers v The Queen (2008) 189 A Crim R 298.PART C: OVERVIEW OF SOME OF THE EVIDENCE Several different categories of evidence have been received by the Court. The first category of evidence is that of recorded visual recordings referred to as CCTV footage. Exhibit P5 is a USB[13] containing CCTV footage or media files produced by cameras at several different locations. First, at the petrol pumps of the OTR service station on West Terrace (a short and long version of the footage depicting the incident); secondly, at the Happy Car Wash at the OTR; and thirdly, a camera installed on the taxi.[13] Universal Serial Bus. Defence counsel tendered a compact disc (exhibit D1) containing a single media file being a compilation of the above CCTV footage on the one screen (divided into three segments). He also tendered a separate USB (exhibit D2) containing two media files, each being the same compilation that can be played at half or quarter speed. The CCTV image quality overall is reasonable and does assist in appraising the incident. However, there are some major limitations as to the extent to which the totality of the CCTV footage can be relied upon as an accurate and complete record of the incident. A major problem arises from the fact that the fields of view of the various cameras are being obscured by objects and people at various stages of the incident. Further, the cameras record happenings from distances, angles and perspectives different to that of various witnesses. It is also the case that when fast movements are involved there may be some blurriness and a lack of detail (such as facial expressions). I note that only the CCTV from the taxi has an audio track; that sound is not of high quality but is of some utility. The second category of evidence comprises a number of still shots taken from CCTV footage. As an example, exhibit P6 comprises:·still photos 1 to 50 inclusive taken from the footage from cameras at the petrol pumps of the OTR service station on West Terrace; ·still photos 51 to 59 inclusive taken from the footage from cameras at the Happy Car Wash at the OTR;·still photos 60 to 96 inclusive taken from the footage from the taxi camera.

Decision

Reasons for decision

I place weight upon the defence submissions as I understood and summarised them above at [111] to [114].PART K: CONCLUSIONS AND FINAL VERDICT In all of the circumstances of the case, I conclude that at the relevant time, the accused may well have been under the cumulative influence of the stress created by the unexpected and surprisingly aggressive conduct of the deceased. This was superimposed upon the influence of alcohol and cocaine (potentiated by each other in the blood stream). This was in turn further superimposed upon the influence of the disquiet and temporary degradation of vision caused by the immediate injury to his left eye (in circumstances where he was legally blind in his right eye). I find that the accused, in delivering the flurry of blows and then the kick, intended to put the deceased to the ground forcefully. However, I am simply not satisfied beyond reasonable doubt that, at the time of administering the flurry of blows or the kick, the accused possessed the specific intent to kill or inflict grievous bodily harm required for the crime of murder to be established. Accordingly, I find that the accused is not guilty of the crime of murder. However, I do find that the accused is guilty of the crime of manslaughter by unlawful and dangerous act. I do so not only because the accused has pleaded guilty to the charge of manslaughter but because I am satisfied beyond reasonable doubt of his guilt of that charge on the evidence before me. First, I am satisfied beyond reasonable doubt that at the time of administering it, the kick was an unlawful act (an assault). A full defence of self-defence (or defence of another) did not apply because I find that (even though the kick was not delivered with an intention to inflict grievous bodily harm), the kick was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.[44] [44] Criminal Law Consolidation Act 1935 (SA) s 15(1)(b). Secondly, I am satisfied beyond reasonable doubt that the kick was a dangerous act in that a reasonable person in the accused’s position would have realised that, in striking the deceased in the way that he did, the accused was exposing the deceased to an appreciable risk of serious injury.[45] [45] This test is objective rather than subjective – it is a question of what a reasonable person in the accused’s position would have realised or intended rather than what the accused himself did actually realise or intend. See generally Wilson v The Queen (1992) 174 CLR 313. Accordingly, the accused is guilty of the crime of manslaughter by unlawful and dangerous act. In those circumstances, I am not required to determine whether the prosecution has, or has not, disproved a partial defence reducing murder to manslaughter pursuant to Criminal Law Consolidation Act 1935 (SA) s 15(2). Verdict For all of the above reasons, I find the accused not guilty of the crime of murder but guilty of the crime of manslaughter.

Ratio Decidendi

Legal Principle Established

As to the application of the above considerations to a determination of the present case, Professor White notes in the above extracts that an important matter is the bearing of intoxication (by both alcohol and illicit drugs) upon “impulsive behaviour”. Thus, the possibility of the kick being an impulsive action, and not accompanied with the element of murderous intent required for a conviction of murder, must be carefully considered. The further following passage in his evidence is also helpful in this area: Q.Professor, I was listening closely to what you had to say about impulsive behaviour, both here today in your evidence, and indeed at p.7 of your report, P22, which I think you have in front of you there. In particular, I am referring now to the passage under the heading ‘Summary’ down the bottom there, where you talk about impulsive behaviour. Anyway, my question is this: say person A has a blood alcohol level of about .105%. And say person B treats, or attacks person A in a rude and somewhat violent way. In those circumstances may it be the case that that level of alcohol may have a tendency to bring about an impulsive reaction by person A, in the sense of striking a blow on person B, without first considering what physical effect that strike may have upon B.A.Yes.Intoxication by alcohol and cocaine – legal considerations In R v Shinner,[27] King CJ stressed the importance of relating the law as to intoxication to the facts in cases where, absent intoxication, an inference of intention might readily be drawn from the performance of a particular act by the accused. His Honour stated:[28]I am left with an uneasy impression that the jury may not have been sufficiently aware of the precise issues which they had to resolve as to the appellant’s state of mind and the bearing of his intoxication upon those issues. Despite the appellant’s evidence to the contrary, there was a strong body of evidence leading to the conclusion that the appellant’s boot made contact with the deceased’s head on more than one occasion. There was therefore an issue for the jury as to whether the appellant intended to make contact with the head. That inference might readily be drawn from the appellant’s actions if he were sober. The inference might not as readily be drawn in the light of his intoxicated state as it would be, if he were sober. If he did intentionally and repeatedly kick the deceased’s head, the inference that he intended at least grievous bodily harm might readily be drawn if he were sober. It might be less readily drawn by reason of his intoxication.[27] (1993) 173 LSJS 384.[28] (1993) 173 LSJS 384, 386. Similarly, in R v Wingfield,[29] the accused was convicted of the murder of his young child on the basis that he had inflicted multiple injuries, including to the head and fractures to both arms. The child died of a raised inter cranial swelling following a closed head injury. The accused gave evidence that he was drunk when the incident occurred. In allowing the appeal, King CJ stated:[30]The intention of the appellant was a crucial issue. The injuries which he caused were grievous. If caused by a sober rational man, the inference that they were caused with the intention of doing grievous bodily harm would be strong. The appellant, however, had no rational cause to do grievous bodily harm to the child and the appellant was drunk. These circumstances demanded a careful direction to the jury as to nature of the intention which was required for a verdict of murder and as to the bearing of intoxication upon the issue of intention. [29] (1994) 176 LSJS 14.[30] (1994) 176 LSJS 14, 15.