R v HEEREMANS - [2007] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HEEREMANS
[2007] SASC 87
Reasons for Decision of The Honourable Justice Vanstone
9 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Application for leave to appeal against conviction - leave on one ground granted.
Barca v The Queen (1975) 133 CLR 82; R v Nudd (2006) 80 ALJR 614, applied.

R v HEEREMANS
[2007] SASC 87
Criminal
VANSTONE J:
Leave to appeal against conviction

The applicant seeks leave to appeal against his conviction for murder.
Argument as to the grounds took place on two separate occasions. Prior to the second hearing and at my request, Mr Vadasz, counsel for the applicant, filed a fresh document encapsulating the various versions of grounds of appeal. He also supplemented with further particulars a couple of the original grounds.
Several of the original grounds (which were represented in the final version of the grounds as Ground 1) repeated in slightly different terms what was in essence the same ground. The gravamen of these grounds was a complaint that the learned trial judge in summing up to the jury had premised his directions on the basis that the blow which the applicant had admitted delivering to the victim was the fatal blow. Counsel’s complaint was that in fact causation was one of the main issues in the trial and that in those directions the judge had effectively withdrawn that issue from the jury. Allied to that contention was an argument, ultimately contained in Ground 2 – failure to put the defence case – that the judge had wrongly directed that none of the co-accuseds could be convicted of any offence except as aiders and abetters to the actions of the applicant.
The short answer to the first complaint is that none of the passages referred to support the applicant’s argument. The issue of causation was indeed left to the jury. That issue devolved to quite a simple one, being whether the prosecution proved that the blow with an iron bar, which the applicant admitted delivering to the victim, caused his ruptured spleen leading to death, or whether it was reasonably possible that any of a number of other events which befell the victim might have caused that injury. The other events I mention included other blows alleged to have been delivered by co-accuseds. Those blows were never relied upon by the prosecution as a basis for a conviction for murder or manslaughter. The case for the prosecution was put, throughout, on the basis that a blow or blows with the iron bar delivered by the applicant, as principal in the first degree, was the only basis for conviction of one or more of the co-accuseds.
Plainly the prosecution had to satisfy the jury that the fatal injury was sustained at the applicant’s hand as opposed to during further confrontations at the scene or after the victim returned to his home. In my view that was made very clear in the directions of the judge. I consider it would have been quite wrong for the judge to enlarge the case against the co-accuseds by directing the jury that it could convict any of them on the basis of other violence shown to the victim. Ground 1 is not reasonably arguable. This aspect of Ground 2 is not reasonably arguable.
The balance of Ground 2 raised the complaint that the judge failed to adequately put the applicant’s case to the jury. I was referred to a number of passages throughout the summing up where the judge referred to the applicant’s case and arguments made on behalf of the applicant. The summing up in this matter was very lengthy. Rather than dealing with the case of each accused man in a separate section, the judge chose to remind the jury of the respective cases as he dealt with the main witnesses or issues. For instance, in relation to the critical matter of causation the judge effectively put the applicant’s case after directing on that matter. Towards the end of the summing up the judge also summarised each counsel’s address and again the jury were reminded of the applicant’s arguments on a range of issues including causation. When the various directions are looked at in combination it can be seen that they are comprehensive. In my view there can be no criticism of the way in which the judge met his obligations to the applicant.
A further ground complained of the judge’s decision to allow one of the co-accuseds to reopen his case after the close of evidence. This ground was not pressed in the final “revised grounds”, but as it is relevant to the new Ground 3, I shall deal with it. Mr Braithwaite, for the accused Patrick McKenna, was permitted to reopen his case to call the pathologist, Dr Gilbert. Dr Gilbert had reviewed the post mortem examination carried out by the pathologist Dr Cala and gave evidence which, though broadly supportive of Dr Cala’s, allowed for the possibility that the injury to the victim’s spleen could have been caused by just one blow. Dr Cala’s firm view was that a single blow would have been unlikely to cause that injury.
It is true that the course taken was an unusual one. The reason for it is relevant to Ground 3 to which I shall shortly come. However the net result of Dr Gilbert’s evidence was very favourable to the applicant. The applicant’s evidence was that he had struck the victim only once with the iron bar and had done so in self-defence. The applicant’s version could not stand with Dr Cala’s evidence. But it was compatible with Dr Gilbert’s.
In the end the complaint was one of timing. It was suggested that the fact that Dr Gilbert gave evidence later in the trial than he otherwise might have has somehow prejudiced the applicant. Reference was made to a ruling by the trial judge that the matter would go to the jury only on the basis of the co-accuseds aiding and abetting the applicant’s act and not on the basis of joint enterprise. In my view there was no particular significance in the timing of that ruling nor any particular relevance in the ruling itself, in terms of the ground of appeal as originally drafted. I could not see how the later calling of Dr Gilbert could have prejudiced the applicant. I would have refused leave to appeal on this ground in any event.
There was a further complaint that the judge wrongly declined to give the customary circumstantial evidence direction. Even were it assumed that the absence of such a direction could give rise to a miscarriage of justice (which assumption I would not readily make) in my view this was plainly not a case resting “substantially on circumstantial evidence” (Barca v The Queen (1975) 133 CLR 82, 104) and it would have been confusing to have directed in such terms. Anyway this ground did not appear in the final version of the grounds.
Ground 3 complains that the judge wrongly declined to discharge the jury after material appeared in the press alleging that the principal pathologist in the case, Dr Cala, was under investigation in relation to his professional work in New South Wales. It was suggested that the prosecution should have disclosed this fact to the defence prior to trial. (It is acknowledged that it was not known to the prosecutor.) Then it was said that the trial should have been aborted so that defence counsel could have had the topic investigated. It was said that the failure to discharge the jury caused a miscarriage of justice.
No material of a factual nature was put before me to establish the publication or that counsel would or could have cross-examined Dr Cala any differently had the matter been explored. It is hard to imagine what such factual material could have consisted of. Plainly there would have been a danger of the introduction of hearsay material had the matter been the subject of cross-examination. Furthermore, on the face of it, the publication would only have advantaged the defence by calling into question Dr Cala’s reliability. There is also the question of whether the applicant would have been prepared to throw away his shield in pursuit of the issue. As I mentioned, it was this publicity which led to the calling of Dr Gilbert, who was already familiar with the case. Furthermore, the trial judge gave an extensive direction to the jury about the matter, instructing it to disregard the assertions in the newspaper. I consider the ground is not reasonably arguable.
Ground 4 complains about certain alleged failures by the then defence counsel in her conduct of the case for the applicant. The ground does not allege incompetence. It amounts to a series of assertions to the effect that different forensic decisions should have been made. I have no material before me to suggest that the conduct of the case was other than in accordance with the defendant’s instructions. But in any event, I consider the complaint does not amount to an arguable ground of appeal.
The accused is bound by the course of the trial except where there is such a failure of process as to depart from the essential requirements of a fair trial: R v Nudd (2006) 80 ALJR 614, [20]. The appellate court’s enquiry is an objective one; whether course taken by counsel was “capable of explanation”. (See Nudd at [157].)
I sought from the appellant’s new counsel an idea of the sort of questions to witnesses he would have had trial counsel put. His suggestions were of questions which were almost exclusively objectionable. I have read the cross-examination of trial counsel on the relevant topic – exploration of other possible causes of the victim’s fatal injury – as well as her final address. Far from revealing any error, misjudgement or deficit, it appears to me be skilful and persuasive. I think the ground must inevitably fail, both on account of its formulation and by reason of its lack of substance.
Ground 5 alleges the verdict is unsafe and unsatisfactory. This is a complaint that no reasonable jury could have convicted where there were other plausible means by which the victim’s fatal injury could have been caused. There is force in Mr Pearce’s argument that this was very much a jury question, but I think on balance, the ground is arguable.
Accordingly, I grant leave on Ground 5 but refuse leave on Grounds 1 to 4.