R v KAGEREGERE

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KAGEREGERE
[2012] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Blue)
2 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY
Appellant found guilty of murder – sole issue at trial was whether appellant intended to kill when performing act causing death or may have believed the victim was already dead.
Appeal against conviction – whether reasonable possibility of innocence on the evidence and trial Judge’s findings – whether trial Judge erroneously applied an objective standard to his assessment of appellant’s state of mind.
Held: Appeal dismissed – trial Judge’s acceptance of specific aspects of appellant’s evidence not inconsistent with trial Judge’s general adverse credibility finding against the appellant – no error in trial Judge’s treatment of witness’s evidence about subsequent statements by the defendant – trial judge had adequate regard to the evidence and made no error in assessment or application of the evidence in assessing appellant’s state of mind – trial Judge's finding beyond reasonable doubt as to appellant’s state of mind was supported by the evidence – trial Judge correctly applied a subjective standard to his assessment of the appellant’s state of mind.

R v KAGEREGERE
[2012] SASCFC 17
Court of Criminal Appeal: Doyle CJ, Vanstone and Blue JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons of Blue J. There is nothing that I wish to add.
VANSTONE J: I agree that the appeal should be dismissed. I agree with the reasons of Blue J.
BLUE J: The appellant/defendant was convicted by a Judge of this Court sitting alone of the murder of his wife.
The defendant appeals against that conviction.
The central issue at trial was whether the defendant intended to kill his wife which in turn depended on the issue whether he knew that his wife was alive at the time at which he lit a fire which consumed the unit in which they lived and was the cause of his wife’s death.
The principal grounds of appeal are that the verdict of guilty was not supported by the evidence and that the trial Judge erroneously applied an objective standard to his assessment of the defendant’s state of mind.
Background facts
There were two matters which, on the prosecution case, were important aspects of the background to the events which occurred on the night of the death of the defendant’s wife Malaika, and in respect to which the trial Judge made findings of fact.
The first aspect was that the trial Judge found that there was bad blood between the defendant and Malaika’s father, associated with the defendant not having paid the stipulated dowry to Malaika’s father upon her marriage. The defendant harboured a strong resentment towards Malaika’s father, which had on occasions boiled over into anger.
Secondly, there was a history of violence in the relationship between the defendant and Malaika, which the trial Judge described as “tempestuous”. The trial Judge accepted evidence from Malaika’s mother, sister and father and from friends of the defendant and Malaika that, on a number of occasions over several years prior to the night in question the defendant had become very aggressive towards Malaika and had beaten her. The trial Judge found that the defendant expressed strong anger towards Malaika, often associated with his having been drinking and often associated with his expression of anger towards his father-in-law.
On 31 December 2009, the defendant and Malaika were living in a unit on the second floor of a 3 storey unit block on Anzac Highway. They stayed home on New Year’s Eve. They had dinner and drank beer and wine.
At 12.10am on New Year’s Day, the defendant and Malaika phoned Malaika’s sister Arillette and her boyfriend Jeremy. The telephone conversations lasted until 12.48am (disregarding a break of 90 seconds when Jeremy and Arillette changed phones).
At 1.13am, the defendant again telephoned Arillette and spoke to her (with insignificant breaks during which they changed phones) until 1.43am. During that second series of telephone conversations, the defendant was angry and expressed anger towards the father of Malaika and Arillette.
At some point between about 12.50 - 2.00am (on the prosecution case), and about 2.25am (on the defence case), an argument took place between the defendant and Malaika in the lounge room. The defendant said that he punched Malaika and she fell backwards, striking her head on the wall and losing consciousness.
Some time later the defendant dragged Malaika from where she was lying in the vicinity of the gas heater in the lounge to the side of the sofa bed in the lounge. At this point she was lying naked and flat on her back.
The defendant formed an intention to make a false report to the police that two intruders had broken into the unit and then set fire to the unit, with a view to the police concluding that the intruders must have started the fire. He took various preparatory steps to implement that intention. The trial Judge made findings concerning those actions, which are not disputed on appeal. The actions comprised removing the smoke alarms from the ceiling of the unit and placing them in a cupboard in the passageway, turning off and unplugging all of the electrical appliances in the unit and removing the gas heater from the wall in the lounge and exposing its inlet pipe as a source of gas.
At 2.41am, the defendant telephoned the police emergency number (000) and said “I want the police… Because of some people hitting me… I’m in Anzac Highway”. He did not give his address and did not answer a return call from the police.
The defendant lit the gas emanating from the heater’s inlet pipe. The crucial factual issue at the trial was whether or not the defendant knew that Malaika was alive or dead when he lit the gas. It was the prosecution case that he knew that she was alive, and the defence case that he believed she was dead.
Upon lighting the gas, the defendant picked up his 30 month-old son from his bedroom and then waited on the landing outside the unit whilst the fire took hold. At 3.03am or 3.04am, the defendant descended the stairs to the ground floor and moved away from the unit block towards Anzac Highway. At 3.06am, 2 police officers arrived. They spoke to the defendant and formed the opinion that he was moderately intoxicated.
At about 4am, the defendant told two police investigators that black men had arrived at the unit, a fight had started, he had called for the police but they had not come, he had pushed the intruders out and later he saw a fire in the lounge room. He said his wife was sleeping in their bedroom at the time of the fire with their son and he had taken his son and run outside when the fire started but did not know where his wife was.
The defendant made statements, within days of the fire, as to how it started to three of his relatives and friends who were called to give evidence by the prosecution. He told two of them that it was caused by the stove and told one of those witnesses that he had unsuccessfully tried to rescue Malaika. He told the third witness that a heater had caused the bed sheets to catch fire, he had tried to rouse his wife and his wife had said “I can’t get up. I can’t get up.”
Some months after the fire, the defendant told a different story to a fourth prosecution witness, Mr Nakumryango. According to Mr Nakumryango, the defendant referred first to Malaika dying in the fire and then to her dying because of physical fighting. I address this evidence in more detail below as it is the subject of one of the grounds of appeal.
At trial, the defendant testified that, after Malaika was knocked unconscious, he tried to rouse her unsuccessfully and formed the view that she was dead. He then decided to light the fire to cover up the fact that his punching her had killed her.
The trial Judge was persuaded beyond reasonable doubt that the defendant knew that Malaika was alive at the point of which he lit the fire and that he lit the fire in an attempt to escape apprehension for the assault he had committed against Malaika.
Grounds of appeal
On appeal, the defendant challenges the trial Judge’s finding beyond reasonable doubt that the defendant knew that Malaika was alive at the time at which he lit the fire. In so doing, the defendant essentially makes 4 contentions, namely:
1.an inconsistency between the findings of the trial Judge that on the one hand he considered the testimony of the defendant was not credible and did not accept it but on the other hand made specific findings which were based (at least in part) on the acceptance of aspects of the defendant’s evidence;
2.the evidence of Mr Nakumryango of the story told to him by the defendant some months after the fire, insofar as the defendant said that Malaika died because of the fighting, raised a reasonable possibility consistent with the defendant’s innocence;
3.the trial Judge’s finding beyond reasonable doubt that the defendant believed that Malaika was alive when he started the fire was not supported (to the requisite degree) by the evidence, did not have adequate regard to certain specific evidence and in one respect involved circular reasoning;
4.the trial Judge erroneously applied an objective standard to his assessment of the defendant’s belief as to whether or not Malaika was alive when the mental element for murder is purely subjective.
Credibility of the defendant
The trial Judge made an adverse credibility finding in relation to the defendant’s evidence. The trial Judge identified specific reasons for that credibility finding at [150] to [153] of his reasons, and there is no challenge to the credibility finding as such.
The defendant contends that this general credibility finding is inconsistent with the later acceptance by the trial Judge of three specific aspects of the defendant’s evidence. The defendant contends that the fact that the trial Judge accepted (at least) some parts of the defendant’s evidence raised at least a reasonable possibility that his evidence was credible and contradicted his general finding that his testimony was not “credible at all”.
The defendant’s submission depends upon the precise wording used by the trial Judge at [149] in making his general credibility finding, which was as follows:
I make it clear at the outset that I did not find the testimony of the accused to be credible at all. I do not accept his evidence for the reasons appearing in paragraphs [150] to [153].
The defendant accepts that it is possible for a trier of fact (jury or Judge alone) to make a general adverse credibility finding in relation to a witness and at the same time to accept the witness’s evidence on specific matters. This is especially so where evidence which is accepted is corroborated by other witnesses or by objective evidence or where that evidence is either against the interests of the witness or at least in the case of an accused is not advancing the exculpatory case of the accused at trial. The defendant accepts that, if the trial Judge had expressed his general credibility finding in this way, there could be no complaint.
Reading the trial Judge’s reasons for judgment as a whole, I have no doubt that the trial Judge was in fact proceeding in the common place manner of making a general adverse credibility finding but not by that finding rejecting all evidence which the defendant gave.
This conclusion is reinforced by an analysis of the specific allegedly inconsistent findings of the trial Judge as follows.
1.The trial Judge said at [175] “the accused himself admitted that he remained on the landing outside his unit for some period of time after leaving the unit alight with his son in his arms” [emphasis added] and went on to make a finding that the accused did so remain on the landing. The trial Judge had earlier at [23] referred to the evidence of prosecution witnesses (which he accepted) which showed that “the accused must have stood on the landing outside of unit 5 for at least several minutes whilst the fire blazed inside.”
2.The trial Judge said at [156] “the accused had admitted in his testimony that he punched Malaika with all his strength” [emphasis added] in making a finding that he was “satisfied beyond reasonable doubt that Malaika was rendered unconscious, at least in part, by violence inflicted by the accused.”
3.The trial Judge said at [168] “I am satisfied beyond reasonable doubt that the truth is, as he eventually admitted in cross-examination, that he took other steps to determine whether his wife was alive. Whether or not he felt for a heart beat or cradled his wife in the way he eventually testified in the course of cross-examination, I am satisfied that the accused spent some considerable time close to his wife” [emphasis added].
In each case, the evidence of the defendant which the trial Judge accepted, while it might not technically have comprised an admission against interest, did not advance the exculpatory story being told by the defendant in the witness box and the trial Judge had no reason to reject it. That this was the approach of the trial Judge is illustrated by his use of the word “admitted” in each passage quoted above.
When the trial Judge’s credibility finding at [149] is considered in context, it is clear that the acceptance of specific aspects of the defendant’s evidence was in no way inconsistent with the trial Judge’s general adverse credibility finding. No error had been demonstrated.
Evidence of Mr Nakumryango
Mr Nakumryango gave evidence of a discussion with the defendant some months after the fire. He gave evidence which included the following passage:
QDid you ask him about what had happened.
AYes, he told me that the house was on fire and nothing he could do, he took his child and went outside. His wife wasn’t able to escape the fire and she died in the fire.
QDid he say what he and his wife had been doing that night.
AHe told me that they had been drinking that particular night and then they started arguing, both…
QWhat did he tell you happened next.
AHe told me that after arguing the house was on fire and that’s how his wife died, in the fire.
QDid he say whether or not anything physical happened between him and his wife.
AThe argument itself was about fighting, they were fighting. I wasn’t told by him what he was using to fight for, but that they were fighting… I mean physical fighting, until the house was on fire and then the fire was caused by this fight.
Up to that point, Mr Nakumryango’s evidence of the defendant’s account of what happened that night was in general accord with the prosecution case. However, Mr Nakumryango went on to give further evidence as follows:
QDid Luka tell you where his wife ended up at the end of this fighting.
AHe told me that his wife died during the fight and that’s how the fire started.
QDid he say how his wife died.
AHis wife died from the physical fighting…
QDid he say where his wife was when he lit the fire.
AThe fire started in the living room and when she was dead Luka told me ‘I pulled her into the bedroom and I set the fire inside the bedroom and then I took the child, I went outside to see’.
The defendant contends that a fair reading of the whole of Mr Nakumryango’s evidence is that the defendant was saying throughout that his wife had died during the fight and that this account was consistent with his evidence ultimately given at trial.
I reject this contention. Even if this interpretation is accepted, taken at its highest it would only demonstrate the first proposition put by the defendant in his outline of argument, namely that the defendant “had not invented that version of events at the trial.” The defendant having given this version some months after the fire does not of itself elevate the story so as to give rise to a reasonable possibility of innocence. By that time, the defendant had already (on the trial Judge’s findings which are not contested) told different, inconsistent and false stories to the police at the scene of the fire and subsequently to his friends and relatives as to what had happened on that night. Given the generally adverse view which the trial Judge took of the defendant’s credibility, the trial Judge was not bound to accept that there was a reasonable possibility that his story at trial was true.
Further, the interpretation of Mr Nakumryango’s evidence advanced by the defendant is problematic. Another interpretation of it is that the defendant effectively admitted guilt to Mr Nakumryango. In any event the trial Judge was not inclined to place weight on the suggested admissions. He referred to the apparently contrasting statements attributed to the defendant and to some confusion about where the victim was before being moved. He made the general observation that the account given by the defendant to Mr Nakumryango accorded closely with the defendant’s conduct. The defendant argues that more weight should have been given by the trial Judge to what he contends was a previous consistent statement by the defendant. Equally the Judge could have viewed the admissions as being telling evidence against the defendant. However, given that the account of the conversation was given via an interpreter and inasmuch as the Judge had the advantage of assessing the defendant’s account given in evidence, it is hard to see that the defendant has valid complaint about the Judge’s treatment of this evidence.
Finding not supported by the evidence
Professors Grantham and White
The defendant contends that the trial Judge failed to have adequate regard to the evidence of Professor Grantham as to the ability of a lay person to ascertain whether or not a person is breathing or alive or to the evidence of Professor White as to the effect of alcohol upon a person’s ability to assess or exercise care in assessing whether an unconscious person is alive.
The trial Judge referred explicitly to the evidence of Professor Grantham at [167] in making his finding whether the defendant did in fact notice that Malaika was breathing. He referred to Professor Grantham’s evidence that an unconscious person breathes in a manner similar to a sleeping person and to the fact that it is possible that an untrained lay person might fail to notice that an unconscious person was breathing. The trial Judge went on to refer to the fact that Malaika was naked and in a prone position on the floor when the defendant was observing her. In this respect, the evidence of Professor Grantham was that the ideal circumstances for observing whether or not someone is breathing is when they are naked and lying stretched out flat on their back. The trial Judge referred at [31]-[34] explicitly to Professor White’s evidence to the effect that alcohol tends to impair functions such as thinking and concentration and tends to increase errors of judgment and reduce care. The trial Judge went on to say that Professor White’s evidence “whilst necessarily general in nature, must ultimately be considered against what is known evidence of the accused’s conduct and functioning at the relevant time.”
It is apparent that the trial Judge had explicit regard to the evidence of Professors Grantham and White and took it into account in making his finding. No error in the assessment or application of their evidence by the trial Judge has been demonstrated.
Time and capacity

The trial Judge found at [166] “I am satisfied beyond reasonable doubt that [the defendant] had time, and a capacity, to realise that Malaika was still breathing.”
The defendant contends that this conclusion was only one of the reasonable possibilities open on the evidence and that it was possible that the defendant did not have the capacity to realise that Malaika was still breathing.
The trial Judge reached this conclusion at the end of a detailed analysis at [165] and [166] of the planning and steps taken by the defendant to construct a false story of intruders in the unit and to set fire to the unit. The trial Judge referred to the steps which he found the defendant took, including unplugging all the electrical appliances, removing the smoke alarms and disconnecting the heater from its gas inlet. These steps and the plan he formulated to take them demonstrated to the trial Judge that the defendant had time “in which he was capable of working out an admittedly poor plan, but a plan nonetheless, before he lit the fire.”
On the trial Judge’s findings, it is clear beyond argument that the defendant did not simply panic upon observing his wife unconscious and immediately light a fire to destroy the unit, but took a series of calculated steps prior to so doing. As to the defendant’s capacity to realise that Malaika was still breathing, it was open to the trial Judge to infer from the calculated steps and planning which the defendant took coupled with all of the other circumstances that the defendant had the presence of mind to be able to exercise care (if he had wished) to ascertain conclusively that Malaika was dead (if that is what he suspected). The whole of the circumstantial evidence accepted by the trial Judge was capable of rebutting a reasonable possibility that the defendant did not have the capacity to realise that Malaika was still breathing. No error has been demonstrated.
Time of assault
The trial Judge found at [165] that the assault on Malaika must have occurred before 2am. The trial Judge found this in light of the telephone records showing calls made by the defendant on the night (before and after that time) and in view of the time that it must have taken to decide upon and execute his plan to burn the unit down and make the false report to the police.
The defendant contends that it was a reasonable possibility open on the evidence that the argument with Malaika and her becoming unconscious did not occur until just after the last telephone call made by the defendant that night at 2.24am. If so, the argument runs, there would have been inadequate time in which the defendant could have accurately assessed the state of vitality of his wife.
There is no particular reason to reject the trial Judge’s finding that the assault occurred prior to 2.00am. The defendant has not demonstrated any error in his assessment or reasoning. Even if that finding were erroneous, ex hypothesis the fact would remain that the defendant still had sufficient time to take the various steps described by the trial Judge to implement his plan to set fire to the unit. The fact that he had such time meant that he also had sufficient time to assess whether Malaika was alive or dead and the trial Judge’s overall reasoning is not affected.
Circular reasoning
The defendant contends that the trial Judge’s statement at [172] that “the very decision to burn the unit down and the extent to which the accused went to ensure that the unit was totally destroyed by fire, in my view, also supports my conclusion that the accused’s purpose in starting the fire was to ensure that his wife did not survive” is circular reasoning because burning the unit down was equally consistent with the defence case.
A reading of the whole of [172] to [174] of the trial Judge’s reasons shows that the passage quoted by the defendant is the conclusion from what is subsequently set out in the balance of [172] and in [173], which in turn leads to the same conclusion re‑expressed at [174]. In particular, the trial Judge considered at [173] whether the defendant’s act in setting the fire to the unit was the irrational act of a moderately drunk and panicked man. He rejected this possibility because of the extensive efforts to which the defendant went to ensure that the unit was totally consumed by fire, which efforts included the elaborate preparation and planning referred to at [165] and [166] together with the defendant’s conduct in telephoning the police to report the intruders but not giving his address at that point.
Properly analysed, the reasoning evinced at [172] to [174] is not circular. No error has been demonstrated.
Conclusion
Considering the above contentions by the defendant in combination, I reject the contention that the trial Judge’s finding beyond reasonable doubt that the defendant knew that Malaika was alive when he started the fire was not supported by the evidence.
Subjective versus objective assessment
The defendant contends that the trial Judge erroneously applied an objective test in assessing the defendant’s belief as to whether or not Malaika was alive. The defendant points to four specific passages in the trial Judge’s analysis in this respect.
Before examining those passages, it is important to consider what the trial Judge said as to the correct approach to the assessment of the defendant’s state of mind. At [9] the trial Judge clearly and correctly identified that a necessary ingredient in the crime of murder is that the defendant carried out the acts “with the intention of either killing Malaika or at the very least causing Malaika grievous 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”. At [10] the trial Judge said “the only question is, therefore, whether the prosecution have proved beyond reasonable doubt that the accused did not believe that Malaika was dead when he lit the fire”. At [121] the trial Judge said “an accused’s mistaken belief that a victim is dead before he or she inflicts the injury which in fact causes death, necessarily negates an intention to kill”. At [148] the trial Judge said “I now turn to my assessment of the evidence bearing on the accused’s belief as to whether Malaika was dead or alive when he ignited the fire.”
In all of these passages, it is clear that the trial Judge correctly appreciated that the test is a purely subjective one. This is in any event a long established and incontrovertible proposition of law.
The four passages which the defendant contends demonstrate an objective test was applied by the trial Judge are as follows.
1.The conclusion at [166] referred to above that “I am satisfied beyond reasonable doubt that [the defendant] also had time and a capacity, to realise that Malaika was breathing”. My analysis above demonstrates that this was in turn based upon the trial Judge’s findings about what the defendant actually did and thought. This sentence is not expressed as to the capacity of a reasonable person or any person other than the defendant, but purely as to the capacity of the defendant himself.
2.A statement at [167] that “those circumstances combined to optimise the opportunity to notice signs of breathing. In my view the accused could not have failed to notice his wife breathing when he moved her from where she fell to her final resting position” and a statement at [168] that “after 8 years of married life the accused could not have failed to have noticed that Malaika was breathing”. Similarly, the trial Judge had earlier in [168] said, when addressing Professor Grantham’s evidence, “in this case the question is whether the accused noticed the breathing, not of a stranger, but of his wife in a situation where there was not a continuing emergency which might have distracted the accused from properly observing his wife”. The context of these latter two sentences was the trial Judge’s consideration of the “objective” evidence of Professor Grantham. The circumstances referred to by the trial Judge’s were circumstances specific to the defendant, namely his knowledge of his wife and her position lying on her back naked on the floor.
3.A statement at [169] that “even an adult with the most basic understanding of human life and a limited capacity for reasoning would still understand that a state of apparent unconsciousness is not necessarily indicative of death.” This passage is to be considered against the background of the statement at [115] that “the accused agreed that he knew that a person who was alive continued to breathe and had a heart beat”. The conclusion at [169] that “I am satisfied beyond reasonable doubt that he understood that Malaika’s apparent unconsciousness was not a conclusive indicator of death and that if she was breathing she was alive” is in fact uncontentious given this admission made by the defendant at trial as to his state of mind.
4.A statement at [171] that “even on his testimonial account that he punched Malaika as hard as he could and that she hit her head on the wall there was little reason for the accused to rush to the conclusion that she was unresponsive because she was dead.” This is to be considered in light of the evidence of the defendant himself that he took steps to determine whether his wife was alive and did not rush to the conclusion that she was unresponsive because she was dead.
In each passage, the trial Judge was not applying an objective test to the defendant’s state of mind, but was merely engaging in the conventional approach of assessing a person’s state of mind against the background of the objective surrounding circumstances. No error has been demonstrated.
Conclusion
The grounds of appeal either alone or in combination do not establish any error by the trial Judge in reaching his conclusion beyond reasonable doubt that the defendant knew that Malaika was alive when he ignited the fire. There is no miscarriage of justice.
It follows that the appeal must be dismissed.
Section 12A of the CLCA
In his reasons for judgment, the trial Judge expressed the conclusion that, if he were wrong as to the crucial finding of fact, that the defendant knew that Malaika was alive the defendant would have been guilty of murder pursuant to s 12A of the Criminal Law Consolidation Act 1935 (SA). On appeal, the defendant challenges that conclusion.
This conclusion by the trial Judge, and the challenge to it on appeal, did not depend upon any finding of fact but raised pure questions of law. Those questions of law involve the meaning of the phrase “act of violence”, the meaning of the word “intentional” and the meaning of the phrase “while acting in the course or furtherance of a major indictable offence” contained in s 12A. The argument on appeal was conducted primarily by reference to common law murder, and submissions concerning the meaning of these three phrases in s 12A were not fully developed.
In these circumstances, it is unnecessary and undesirable to consider the alternative prosecution case based on s 12A.

[2012] SASCFC 17

2 March 2012

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Intention

Charge

Appeal

Sentencing