R v Heeremans - [2007] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEEREMANS
[2007] SASC 187
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Bleby and The Honourable Justice Gray)
25 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL
Appeal against conviction - appellant convicted of murder following a trial before a jury - appellant's co-accused acquitted - whether the Judge, by referring to the appellant as "the striker" in his summing up, effectively invited the jury to proceed on the basis that the appellant was the striker of the blow that ruptured the deceased's spleen, and so did not invite the jury to decide that question themselves - whether the Judge gave disproportionate weight to the premise that the fatal blow was struck by the appellant and inadequate weight to the appellant's defence - whether the appellant was denied a fair trial by his counsel not vigorously pursuing, in cross examination or in addresses to the Judge and jury, the possibility of an alternative hypothesis of the cause of death - whether verdict was unsafe and unsatisfactory - Held: appeal dismissed - appellant had admitted being the striker of a blow with a crowbar to the torso of the deceased, and so it was appropriate and accurate to identify the appellant as the striker - the Judge emphasised to the members of the jury the questions that they needed to be satisfied of before convicting the appellant - the jury was properly directed on the law and was given an extensive summary of the relevant evidence - defence counsel at trial conducted the appellant's defence with skill and care - it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.
Royall v The Queen (1990) 172 CLR 378; R v B (1992) 63 A Crim R 225; R v Sukkar [2005] NSWCCA 54; RPS v R (2000) 199 CLR 620; R v Birks (1990) 19 NSWLR 677; R v Scott (1996) 137 ALR 347 ; R v Oliverio (1993) 61 SASR 354; Nudd v R (2006) 225 ALR 161; TKWJ v R (2002) 212 CLR 214; Ali v R (2005) 214 ALR 1; M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606, considered.

R v HEEREMANS
[2007] SASC 187
Court of Criminal Appeal: Nyland, Bleby and Gray JJ

NYLAND J: I agree with the reasons of Gray J and the orders proposed.
BLEBY J: I agree with the orders proposed by Gray J and with his reasons. I have nothing to add to those reasons.
GRAY J.
This is an appeal against conviction.
The appellant, William Anthony Cornellious Heeremans was charged with DRC, Daniel Ian McKenna, Patrick Joseph McKenna and MJS with the murder of Adam Prestwood Paul Ballard at Glenelg North on 25 July 2003.
On 2 August 2006, following a trial before a jury, the appellant was convicted. His co-accused were acquitted.
The appellant, pursuant to leave, appeals on the ground that the verdict was unsafe and unsatisfactory. An earlier application for leave on other grounds was refused. The appellant now seeks leave from this Court on three further grounds. In the event, consideration of the ground that the verdict was unsafe and unsatisfactory also involved consideration of the matters sought to be raised on the proposed grounds. The Court directed that full argument be heard on the proposed grounds.
The Facts
On the evening of Friday 25 July 2003, Mr Ballard was a passenger in a Toyota sedan being driven by SH, then aged 16 years. SH’s younger sister, MH and JP, both aged 14 years, were also passengers. At relevant times the Toyota was travelling west on Sir Donald Bradman Drive.
At the same time the appellant was driving a Holden sedan on Sir Donald Bradman Drive also in a westerly direction. Present in the appellant’s vehicle were his co-accused at the trial: DRC, the McKennas and MJS. Rachel Sant, MJS’s girlfriend was also in the vehicle.
As the vehicles travelled on Sir Donald Bradman Drive, there was some interaction between their occupants. Both vehicles turned left to travel south on Tapleys Hill Road towards Glenelg.
While on Tapleys Hill Road, Mr Ballard threw or dropped a drink can from the front passenger window. At that point the exchange between the occupants of the two vehicles became heated. An occupant of the appellant’s vehicle indicated to the Toyota to pull over. The Toyota turned left into a side street and stopped outside a block of flats. The Holden followed and stopped to the rear of the Toyota.
Mr Ballard left the Toyota and approached the Holden. DRC got out of the front passenger seat of the Holden. A fight started on the footpath and then moved to the front lawn of the block of flats. The remaining male occupants of the Holden got out of the vehicle and joined in.
On the prosecution case, the appellant and his co-accused then assaulted Mr Ballard. Mr Ballard, it was said, was restrained by a number of the co-accused, while the appellant struck him repeatedly with a crowbar[1] to the torso.
[1] The crowbar was a 90 centimetre iron bar.
This version was disputed by the appellant and his co-accused. However, the appellant admitted delivering one blow with a crowbar to Mr Ballard’s torso. The appellant claimed that this blow was delivered later in the course of the fight in self-defence.
During the fight, on the prosecution case, the fatal blow to Mr Ballard was struck by the appellant. It was said that the blow was delivered using a crowbar. Following this blow, the fight moved down a driveway to the side of the block of units. The co-accused, DRC and Patrick McKenna were involved with Mr Ballard as they moved down the driveway. The appellant’s evidence was that by this time he had returned to his vehicle.
Occupants of the units described shouting and yelling as the fight moved down the driveway. One witness spoke of a crash as though someone had hit the front window of a unit. Another observed events in the driveway from his first floor balcony. He described four men in a line walking towards the rear of the property with another male to the front of them walking backwards. He observed the men punching the man walking backwards until that person slouched to the ground.
Mr Ballard and his friends were the first to leave the scene. At that time Mr Ballard was bleeding, hunched over and walking slowly. They left in the Toyota.
On the prosecution case, before leaving the scene, the appellant boasted in the course of re-enacting the assault on Mr Ballard. A witness heard someone say “did you see I got him with a crowbar? Did you see I got him a good one?” The witness observed a member of the group simulating the swinging of an object in a downward motion.
Mr Ballard attended the Flinders Medical Centre. He was medically examined. X-rays were taken. After a period of observation he was discharged. He returned to his home and later collapsed. By the time an ambulance arrived, he was dead.
The cause of death was the loss of blood from a ruptured spleen. There was no dispute about this aspect of the evidence. Nor was it in dispute that any splenic injury suffered by Mr Ballard at the time of his presentation at the Flinders Medical Centre was not life threatening if detected and properly treated.
There was evidence led at trial that on the day after the fight, the appellant conducted a further re-enactment of striking Mr Ballard with the crowbar. This occurred at his workplace and was recorded on video.
The appellant gave evidence at trial. His account was that when he pulled up behind the Toyota, Mr Ballard approached the passenger side of the Holden and beckoned with his hands and said, “shape up”. DRC got out of the Holden. Punches were exchanged. The appellant then got out of the Holden and claimed that he “zoned out”. He wasn’t sure where the co-accused were. He saw DRC on the grass fighting with one of the women from the Toyota.
On the appellant’s evidence he observed Mr Ballard with Patrick McKenna closer to the units. Patrick McKenna was trying to calm the situation. The appellant observed Mr Ballard punch Patrick McKenna, knocking him to the ground. At that point the appellant went to the boot of his vehicle and obtained the crowbar.
The appellant gave evidence that Mr Ballard then began to walk in the direction of the Holden with his hands in the air, that he continued to walk toward the appellant and said “I am not going to hit you”. As he continued to approach, the appellant swung the crowbar horizontally and struck Mr Ballard under the ribcage on his left hand side.
The appellant’s evidence was that no-one was holding Mr Ballard at the time. He said he hit Mr Ballard to protect himself and to protect Patrick McKenna. He claimed that he hoped to stun Mr Ballard. He claimed that he did not intend to kill him or inflict grievous bodily harm.
On the appellant’s account, after delivery of the one blow, Mr Ballard stepped backward. At that point the appellant turned around and went towards his vehicle. He had a confrontation with MH. He then put the crowbar back into the boot of the Holden. By this time Mr Ballard had moved down the driveway out of sight. The appellant saw DRC and Patrick McKenna emerge from the driveway. He then observed Mr Ballard get into his vehicle and drive away. After a short time he and the co-accused left.
A post-mortem examination of Mr Ballard’s body was conducted on 26 July 2003. On external examination, Dr Cala, a forensic pathologist, observed a line of purple bruising on the left side of Mr Ballard’s back above the top of the pelvic bone. This was on the very outer curve of the trunk of the body. This bruising was poorly defined with no distinct edge or margin.
The injury to the spleen was in close proximity to other physical injuries. In addition to the line of bruising, Mr Ballard sustained a transverse fracture of the tenth rib at the back, to the left of the vertebral column. There was also evidence of a haemorrhage to the lower surface of the left lung.
Dr Cala examined below the surface of the line of bruising. He examined the ribs and the spleen. He noted the rib damage. The spleen was damaged. Dr Cala detected two deep lacerations into the substance of the spleen - a laceration along the long axis; the other to the inner side of the spleen. Dr Cala concluded that the cause of death was acute blood loss from the ruptured spleen.
Dr Gilbert, a forensic pathologist from the State Forensic Science Centre undertook a peer review of the post-mortem findings. That review raised no concerns about Dr Cala’s report.
At trial, Drs Cala and Gilbert proffered opinions about three possible scenarios that might have led to the fatal rupture of Mr Ballard’s spleen, described as follows:
-An episode of trauma to the spleen that resulted in immediate rupture and blood loss into the free space within the abdominal cavity;
-An episode of trauma to the spleen which damaged the internal structure of the spleen but not the outer capsule, followed by an accumulation of bleeding within the spleen leading to a build-up of pressure, eventual tearing of the outer capsule followed by blood loss into the free space within the abdominal cavity;
-An injury to the internal structure of the spleen causing bleeding within the spleen, followed by a later separate application of force causing the outer capsule to break.
Dr Cala favoured the first scenario over the second scenario for the following reasons:
-the lacerations to both sides of the spleen resulted in separation of the spleen to quite a large extent, particularly on the outer surface;
-the appearance of the blood clot over the top and areas of haemorrhage within the spleen;
-microscopic examination of the spleen showed thrombus and early inflammation, which are signs of the body trying to repair itself and stem bleeding;
-the existence of lacerations on two sides of the spleen where one would expect to see that only on one surface in the event of pressure build-up and bursting;
-the absence of bleeding underneath the lacerations within the spleen itself that one would expect to see in the event of pressure build-up and bursting;
-the absence of evidence that the alternate scenario occurred;
-hospital observations indicated ongoing blood loss and supported his preferred view of injury to the spleen and immediate blood loss rather than internal bleeding followed by eruption.
Dr Cala considered the third scenario to be “always a theoretical possibility”.
Of the two lacerations to Mr Ballard’s spleen Dr Gilbert noted that both were coated in blood clot, and that each was discrete. Whilst the presence of two lacerations did not indicate causation by two distinct blows, Dr Gilbert considered that they occurred at different times.
As to the three possible scenarios that may have led to the fatal rupture, Dr Gilbert also favoured the first - the immediate rupture occasioned at the time of the initial application of force followed by slow bleeding. It was, in his view, “the most simple explanation for the anatomical findings at autopsy and the subsequent deterioration of Mr Ballard later that night”.
Dr Gilbert considered that the alternate scenarios were possible, but said that he “did not like” the second scenario involving bleeding within the substance of the spleen due to the absence of free, unconnected translucent capsule which had been stripped away from the remainder of the spleen when a rupture of that kind occurs. That scenario, in Dr Gilbert’s opinion, could be “rubbed out on that basis”.
In the case of the third scenario postulated, Dr Gilbert explained that the initial application of force or injury weakened the spleen. Dr Gilbert considered that the appearance of Mr Ballard’s spleen post-mortem would give equal support to the first and third scenarios. On either scenario, he considered that the relevant damage occurred well before the time of Mr Ballard’s discharge from hospital.
As to the degree of force required to cause the fatal injury, Dr Cala was of the opinion that more than light force was necessary – moderate force at the very least. He favoured the view that severe force had been applied to that area of Mr Ballard’s body.
In Dr Cala’s opinion a blow with a heavy crowbar such as the appellant admitted using to strike Mr Ballard, could have caused the injury he observed to the spleen if swung into Mr Ballard’s body with force. A kick could have caused the injury; a punch could not.
Dr Cala was cross-examined about mechanisms that were capable of causing injury to the spleen. He accepted that he could not say what particular mechanism, nor how many applications of force, caused Mr Ballard’s spleen to rupture. Dr Gilbert considered that splenic injury could be caused, apart from being struck with a crowbar, by falling onto an angular surface, but considered that such a cause would be very unusual.
In Dr Cala’s opinion a single blow with a crowbar was unlikely to have caused the injury to the spleen, fractured rib and associated bruising. He said that although the spleen was near the location of the rib fracture, it would have to be “a pretty massive blow” to lacerate the spleen in the manner observed and cause damage to just one rib. Dr Cala could not exclude one blow as the cause of the fracture to the rib if it was a significant blow. He accepted as a possibility that one blow struck with sufficient force could have caused the rib fracture and damage to the spleen. However, Dr Cala favoured a succession of blows to the same area to cause the transverse fracture to, and shattering of, Mr Ballard’s rib.
Asked to assume that a crowbar was used forcefully by a young man, Dr Gilbert was of the opinion that one blow could have damaged the spleen, rib and overlying tissue. He did not observe anything to suggest that the injuries were caused by more than one blow. Dr Gilbert thought it was “very much more likely” that the damage in that area was caused by one blow than by more than one. Dr Gilbert explained that although he could not exclude the possibility that more than one blow was delivered to the exact same area, the likelihood of this occurring in the context of a violent assault situation was questionable.
Dr Gilbert agreed that the difference in opinion on the matter of the number of blows required to cause the injuries was a “grey area” where two competent medical professionals interpreting the same material may come to different conclusions, neither of which is necessarily wrong, and both of which would be reasonable.
The Issues on Appeal
It is to be observed that the jury were entitled to reach the conclusion, on the evidence led at trial, that the injury to Mr Ballard’s spleen was the cause of death. If the jury concluded that a blow or blows from the crowbar caused that injury, then whichever of the three scenarios applied, the conclusion could be reached that the blow or blows were a substantial or significant cause of Mr Ballard’s death.
The appellant’s complaints all raised the issue of causation. Before coming to discuss the separate complaints, it is convenient to make some general observations.
The question of whether a wrongful act or omission can constitute the legal proximate cause of an event has been the subject of considerable debate. The general test is that the prosecution must show that an accused’s conduct was an operating and contributing cause of death. The conduct must not be a trivial cause or merely part of the history of the events leading up to the death.
Where a number of possible causes operate and contribute to a victim’s death the general test requires refinement. The test does not in itself answer the question of the extent to which an accused’s conduct needs to contribute to the death. In Royall[2] the majority view of the High Court was that the general test was whether an accused’s conduct was a significant contributor to a victim’s death. This is to be assessed objectively without reference to the mental state of the accused and is to be determined by applying commonsense to the facts.
[2] Royall v The Queen (1990) 172 CLR 378.
The judgments in Royall confirm that in the ordinary case the prosecution must prove that the conduct of an accused, whether by act or omission, contributed significantly to the death of a victim. A direction that a jury is to apply commonsense when answering this question is appropriate and adequate.
In the present case the learned trial Judge summed up at some length on the issue of causation, during which he observed:
Ladies and gentlemen, use your commonsense. You have got the evidence of the experts. Ask yourselves: what does the evidence point to? What are you satisfied about? Can you be satisfied beyond reasonable doubt that it was the blow or blows from the crowbar which caused the injury and which was ultimately a substantial cause of the death of Mr Ballard? If you are satisfied beyond reasonable doubt of that, then you will go to the next question. If you are not, ladies and gentlemen, you will acquit all of the accused.
The Judge repeated these directions on a number of occasions. These directions identified the relevant legal test of causation to be applied in the trial.
Withdrawal of Issue from the Jury

The first complaint advanced by the appellant was that the Judge had directed the jury to decide the factual issue of causation in the manner outlined by the prosecution. It was said that, by so doing, the Judge effectively invited the jury to proceed on the basis that the appellant was “the striker” of the blow that ruptured Mr Ballard’s spleen. Counsel for the appellant contended that there were other possible causes of the rupture that the prosecution had to exclude as reasonable possibilities. It was said that by identifying the appellant as “the striker”, the Judge foreclosed on this issue.
Counsel for the Crown submitted in response that it was the prosecution case at trial that the appellant struck Mr Ballard in the torso with a crowbar and that that act was a substantial cause of death. No other act by the appellant or by any of the co-accused was relied upon as being capable of amounting to a substantial cause of the death of Mr Ballard. The prosecution case was presented on the basis that if the jury were not satisfied beyond reasonable doubt that the blow or blows of the crowbar were a substantial cause of Mr Ballard’s death, they were to acquit the appellant and the co-accused.
Counsel for the Crown pointed out that the appellant had admitted being the striker of a blow with a crowbar to the torso of Mr Ballard. It was said that in these circumstances it was appropriate and accurate to identify the appellant as the striker.
In the course of his summing up the Judge crystallised the issue for the jury by posing the question: “are you satisfied beyond reasonable doubt that it was the blow or blows with the crowbar which was the substantial cause of Mr Ballard’s death?” The Judge repeated this question for the jury’s consideration on a number of occasions in the course of the summing up.
The jury were directed that they must be satisfied beyond reasonable doubt that Mr Ballard died from blood loss due to a ruptured spleen, that they must be satisfied beyond reasonable doubt that it was an act or acts of the appellant that caused the ruptured spleen, and that if so satisfied, then they had to consider whether it was an operating and substantial cause of death. The Judge also directed the jury that they had to be satisfied that the fatal injuries were not caused in any other way.
The Judge made an observation to the jury that they may have little doubt that Mr Ballard was struck with a crowbar during the course of this incident. He reminded them of the evidence of the bruise across the area of Mr Ballard’s back and side, which was consistent with having been caused at the same time as the damage to the ribs and the spleen. The Judge then again reminded the jury that the question to ask was whether they were satisfied beyond reasonable doubt that it was the blow or blows with the crowbar which was the substantial cause of Mr Ballard’s death.
The Judge spoke to the jury on this issue by asking rhetorically: “The question that you must ask is: Are you satisfied beyond reasonable doubt that the blow or blows with the crowbar was a substantial cause of Mr Ballard’s injury?” He then addressed the jury in the following terms:
Ladies and gentlemen, it is a matter for you. If you think it is a reasonable possibility that there was some other substantial cause of Mr Ballard’s death or an intervening event then you are not satisfied beyond reasonable doubt that the blow or blows from the crow bar were a substantial cause of Mr Ballard’s death, then, as I’ve said to you, you acquit all the accused and you find them not guilty.
The jury were reminded of this issue at the end of the summing up.
It is important that the summing up be read as a whole. A trial Judge has a broad discretion when commenting on the facts, but any comment on the facts must stop short of overawing the jury. Any such comments must exhibit a judicial balance.[3] There is nothing in the comments of the Judge that deprived the jury of an adequate opportunity of understanding and giving effect to the defence, and the matters relied upon in support of the defence.
[3] R v B (1992) 63 A Crim R 225 at 229.
A review of the entire summing up discloses that there is no basis for a suggestion that the jury were left in any doubt about the question of causation being a live issue for them. The Judge’s summing up focused the jury’s attention on the issue, provided assistance by marshalling the evidence, by directing the jury as to the correct test and by reminding them of these matters a number of times during the summing up.
At no stage during the summing up did the Judge withdraw any aspect of the issue of causation from the jury. Nor did the Judge withdraw from the jury’s consideration any alternative hypothesis that could account for the fatal injury and the need for the prosecution to exclude any other reasonable hypothesis.
There is no substance to this complaint.
Failure to Put the Defence Case
Counsel for the appellant submitted that the Judge gave disproportionate weight to the premise that the fatal blow was struck by the appellant and inadequate weight was given to the appellant’s defence. It was complained that the Judge discouraged the jury from considering an alternative causation hypothesis other than the blow by the crowbar. It was said that the jury were thereby effectively directed to reject one of the main arguments put forward by the appellant.
Counsel for the appellant further contended that the Judge directed the jury that they should only consider the liability of the co-accused in circumstances where they found that the appellant inflicted the fatal blow. It was complained that the Judge effectively directed the jury how they could reason as opposed to how they could not reason. Counsel submitted that the consequence of this approach was to give inadequate weight and effect to the appellant’s defence.
This complaint raised essentially the same issue as discussed above on the complaint about an issue being withdrawn from the jury.
The case presented by the appellant at trial was that the prosecution had failed to prove beyond reasonable doubt that the blow or blows struck by him with the crowbar was a substantial cause of death, and that other, alternative reasonable hypotheses, had not been excluded by the prosecution as being the cause of death. Further, it was contended that the single blow that the appellant admitted delivering to Mr Ballard was struck in defence of himself and his friends, and that it was not delivered with an intention to cause grievous bodily harm.
The question of whether the blow that the appellant admitted delivering to Mr Ballard was in fact the cause of death was, as earlier observed, consistently left by the Judge as a matter for the jury. The Judge posed the following: was the jury satisfied beyond reasonable doubt that Adam Ballard died from blood loss due to the ruptured spleen? Was the jury satisfied beyond reasonable doubt that it was the act or acts of the appellant which caused the ruptured spleen? If so, was that still an operating and substantial cause of death?
The issue was crystallised when the Judge posed the question:
Are you satisfied beyond reasonable doubt that it was the blow or blows with the [crowbar] which was the substantial cause of Mr Ballard’s death?
The question of causation was at all stages left within the province of the jury.
A trial judge is obliged to summarise the respective cases of the prosecution and defence in relation to the principal issues at trial. It is necessary for a trial judge to identify and summarise those issues in a fair and meaningful way.[4]
[4] R v Sukkar [2005] NSWCCA 54 at [93].
In doing so, the trial Judge ensures that a jury is not deprived of adequate opportunity to understand and give effect to the matters relied on in support of a defence. Of central importance is the question of whether the defence case has been fairly put, thus allowing a jury to properly consider the issues raised by an accused. If a jury is not given the opportunity to fairly consider the defence case, there will have been a miscarriage of justice.[5]
[5] R v B (1992) 63 A Crim R 225 at 229; R v Sukkar [2005] NSWCCA 54 at [93]; RPS v R (2000) 199 CLR 620 at [41].
The Judge in the present case carefully addressed the issue of causation in his summing up. The jury was properly directed on the law and were given an extensive summary of the relevant evidence.
In this context, the Judge dealt with defence counsel’s arguments regarding causation. He directed the jury that they were to acquit the appellant if they had a reasonable doubt that the fatal blow was struck by the appellant using the crowbar. The Judge reinforced the point by directing the jury that if Mr Ballard suffered injuries that caused his death by other than the blow or blows from the crowbar, then the appellant was entitled to an acquittal. He summarised the evidence that indicated the appellant was in possession of a crowbar, identified the evidence regarding the number of blows and canvassed at length the evidence of the eyewitnesses to the fight. The Judge summarised the evidence regarding the deceased’s attendance at the Flinders Medical Centre, his discharge and movements at home and how they may have impacted on the cause of death. He gave detailed summaries of the evidence of Dr Cala and Dr Gilbert regarding the cause of death.
The Judge summarised defence counsel’s submission on the issue of causation in the following terms:
[Counsel for the appellant] put the situation in a different way. She said that the evidence is such that you cannot be satisfied beyond reasonable doubt that the blow from the crowbar necessarily caused the ruptured spleen. She referred to evidence of Dr Cala and Dr Gilbert in which they accepted as a possibility that the splenic injury could have been caused from a blow to the abdomen such as a hard punch or a kick. She referred to the evidence of Dr Raftos about the common cause of splenic injury. She said to you that Mr Ballard should not have died and that it is open on the evidence for you to conclude that there is a reasonable possibility that some other act caused the splenic injury from which Mr Ballard ultimately died.
She pointed to the evidence of the witnesses, Mr Clohesy and Ms Herbertson and the hearing of thumping and the fight and it proceeded down the driveway.
You heard the evidence of the medical specialists, the two pathologists and Dr Raftos. You heard Dr Gilbert when he told you that the role of the forensic pathologist is to examine a body and to arrive at an opinion, if he can, about the cause of death. No expert will be absolute about their opinion. There are always scenarios that might explain their observations and might be open in certain circumstances. But, as I have pointed out to you, the evidence of the expert is only part of the story when you do your job in considering the evidence.
You are entitled to use your commonsense and you are entitled to look at the facts as you find them and to weigh them up and to ask yourselves whether you have support from the opinions of experts or if you do not have such support whether the experts’ evidence causes you to have doubts about your own conclusions. You are also entitled, if you wish, to reject an expert’s opinion if you think it flies in the face of commonsense and other evidence.
In this case there is no dispute that Mr Ballard suffered a severe fracture to his ribs, or to his rib. The fact that Dr Muffet did not see that fracture may be explained in a number of ways: Dr Muffet told you that he was looking for evidence of a punctured lung. Do you think it is a reasonable possibility that Mr Ballard suffered the severe fracture to his 10^th rib in a fall after he left the hospital? What you do know, if you accept the evidence of the nurses, is that he was suffering severe pain at the time he came to the hospital, pain in the area of his fractured rib. He was having difficulty breathing and Dr Gilbert told you that this is one of the symptoms of a severe fracture to the rib.
[The appellant] admitted hitting Mr Ballard with a heavy crowbar in that area of the fracture of the rib. You pick up the crowbar and make your own conclusions. What does your commonsense tell you? Do you think it is a reasonable possibility that the fracture occurred other than by the blow from the crowbar? If you are satisfied beyond reasonable doubt that it was the blow or blows, what of the rupture to the spleen? Dr Gilbert and Dr Cala, both experienced pathologists, have given evidence that a blow to that area of the 10^th rib from a crowbar is the most likely explanation for the ruptured spleen and thereafter there was a slow bleed which ultimately resulted in sufficient loss of blood to cause Mr Ballard to go into shock and subsequently die.
Dr Gilbert did not exclude the possibility that he might have suffered some injury to the spleen and then a subsequent fall or blow might have caused the rupture that resulted in the bleeding. But, as he said to you, he preferred the scenario where the spleen was ruptured at the time of the initial injury and that it slowly bleed. [sic]
Ladies and gentlemen, it is a matter for you. If you think it is a reasonable possibility that there was some other substantial cause of Mr Ballard’s death or an intervening event and you are not satisfied beyond reasonable doubt that the blow or blows from the crowbar were a substantial cause of Mr Ballard’s death, then, as I have said to you, you acquit all the accused and you find them not guilty.
This was an accurate summary of the appellant’s case at trial on the issue of causation.
The Judge’s directions were detailed, methodical and balanced. They summarised the respective cases of the prosecution and the appellant and reminded the jury of the arguments of counsel in addition to identifying issues and relating the issues to the law and the facts.
There is no substance to this complaint.
Alleged Failure by Counsel for the Defendant
On appeal it was argued that counsel for the appellant at trial failed to properly defend the appellant so as to deprive him of a fair trial and that in the circumstances a miscarriage of justice arose.
In particular it was complained that an alternative reasonable hypothesis of the cause of death was not advanced or developed either in the cross-examination of the co-accused DRC and Patrick McKenna or in the development to the trial Judge or to the jury of that aspect of the defence case. It was complained that defence counsel had not vigorously pursued with the jury the possibility of an alternative hypothesis of the cause of death. In particular it was said that an incident or incidents that led to the rupture of Mr Ballard’s spleen may have occurred whilst DRC and Patrick McKenna were with the deceased in the driveway. This ground in effect asserts that due to conduct on the part of counsel at trial, there has been a miscarriage of justice.
Gleeson CJ in Birks[6] identified the principles to be applied:[7]
A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
[6] R v Birks (1990) 19 NSWLR 677.
[7] R v Birks (1990) 19 NSWLR 677 at 685. See also R v Scott (1996) 137 ALR 347 at 362, R v Oliverio (1993) 61 SASR 354.
The question of whether counsel’s conduct produced a miscarriage of justice should, in most cases, be considered by reference to an objective standard, and without investigation of the subjective reasons for that conduct.[8]
[8] Nudd v R (2006) 225 ALR 161 at [9] (Gleeson CJ), at [25] (Gummow and Hayne JJ), at [157] (Callinan and Heydon JJ); TKWJ v R (2002) 212 CLR 214 at [79] (McHugh J).
The critical question is not whether counsel has erred in some way, but whether a miscarriage of justice has occurred. Conduct of counsel at trial may be relevant to that issue but not determinative given the wide discretion that counsel has in the conduct of a case.[9]
[9] TKWJ v R (2002) 212 CLR 214 at [79] (McHugh J).
The evaluation that has to be made is whether the conduct in question produced a miscarriage of justice - whether the conduct deprived the appellant of a chance of acquittal that was fairly open.[10]
[10] Ali v R (2005) 214 ALR 1 at [99] (Callinan and Heydon JJ); TKWJ v R (2002) 212 CLR 214 at [26]-[27] (Gaudron J).
The fact that new counsel, upon review of the trial transcript may have conducted the case differently does not warrant the intervention of an appellate court. Nor does the fact that different counsel may have made different forensic decisions amount to a reason for intervention by this Court.
An objective assessment of the conduct of the defence counsel reveals that the appellant’s case was conducted carefully and with skill. There has been no material provided to this court to suggest that the case for the appellant was conducted other than in accordance with his instructions.
Counsel for the appellant, on the appeal, did not condescend to any particularity to support this complaint. It is to be borne in mind that the prosecution case included evidence of the re-enactment at the scene as well as the video recorded re-enactment the following morning at the appellant’s place of employment. These re-enactments were a powerful demonstration of the part the appellant played in the events of that night.
Counsel concluded the trial in accordance with her instruction. A review of the transcript reveals that the appellant’s defence was conducted with skill and care. On appeal the submissions with respect to the complaint were no more than unsubstantiated assertions. There is no substance to this complaint.
Complaint that Verdict was Unsafe and Unsatisfactory
The ground of appeal on which leave was granted was that the verdict of the jury was unsafe and unsatisfactory. Counsel for the appellant in support of this ground complained that the evidence was incapable of supporting a finding that the crowbar blow inflicted by the appellant caused the victim’s spleen to rupture. In particular it was said that such a finding could not be made beyond a reasonable doubt.
On the appellant’s evidence, he admitted striking Mr Ballard to the torso with a crowbar in the region of the fractured rib and ruptured spleen. Whether this blow caused Mr Ballard’s spleen to rupture was a question for the jury. So too was the question of whether there was any other cause for that injury.
The question for the jury was whether they were satisfied beyond reasonable doubt that the blow or blows delivered with the crowbar caused the rupture of the spleen and whether they could exclude all other possible explanations for it. If so, the jury had to consider the question of the appellant’s state of mind. If self-defence could be excluded, the issue was then whether the blow or blows were delivered with an intention to cause grievous bodily harm.
An independent examination of the evidence reveals that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt.[11]
[11] M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606.
Conclusion

As earlier observed the submission put in support of the complaint that the verdict was unsafe and unsatisfactory incorporated the substance of the submissions put with respect to the proposed grounds of appeal. In this circumstance leave to appeal should be granted. However, for the reasons earlier set out, this appeal should be dismissed.