R v Knowles

[2016] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KNOWLES

[2016] SASCFC 100

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Doyle)

9 September 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

Appeal against convictions.  Appellant found guilty by a jury of two counts of murder.  The appellant's four-wheel drive vehicle collided head-on with another vehicle on the Lincoln Highway near Middleback.  The driver of that vehicle and a passenger died at the scene.  Two other passengers sustained serious harm.  The prosecution case was that the appellant drove deliberately into the path of the oncoming vehicle with the intention of committing suicide.  Whether the trial Judge failed to adequately direct the jury as to the bearing of intoxication on the issue of proof of intention or recklessness as to killing or causing grievous bodily harm.

Held:  (per Vanstone J, Kourakis CJ and Doyle J agreeing) Appeal dismissed.  There was no room for thinking that the jury was left unaware of the need to undertake a separate consideration of the bearing of the appellant's intoxication on the proof of intention to kill or cause grievous bodily harm.

R v Shinner (1993) 173 LSJS 384; R v Wingfield (1994) 176 LSJS 14; Viro v The Queen (1978) 141 CLR 88, considered.

R v KNOWLES
[2016] SASCFC 100

Court of Criminal Appeal:       Kourakis CJ, Vanstone and Doyle JJ

1. KOURAKIS CJ:    I would dismiss the appeal for the reasons given by Vanstone J.

2. VANSTONE J:     In the early hours of the morning of 29 December 2014, on the Lincoln Highway near Middleback, a Nissan Patrol motor vehicle being driven by the appellant, Michael Frank Knowles, collided head-on with a vehicle driven by James Moore.  James Moore’s Mitsubishi Pajero motor vehicle contained three passengers.  James Moore and one of those passengers, Natasha Turnbull, died at the scene.  The other two passengers sustained serious harm. 

3. On 11 September 2015, the appellant pleaded guilty as charged to two counts of causing serious harm by dangerous driving in relation to the two injured passengers.  However, his pleas of guilty to two counts of causing death by dangerous driving were not accepted by the Director of Public Prosecutions.  Subsequently, he was tried before a Judge and jury in the Supreme Court sitting at Port Augusta for the murders of James Moore and Natasha Turnbull. The prosecution case was that he drove deliberately into the path of the oncoming Pajero with the intention of committing suicide.  The appellant was found guilty of both counts.  He was sentenced on the following day in relation to all four offences.  There is no complaint about the sentence imposed. 

4. The appellant appeals against his convictions for murder, complaining that the learned trial Judge failed to adequately direct the jury as to the bearing of intoxication on the issue of proof of intention to kill or cause grievous bodily harm.

   Background

5. At the time of the collision, the appellant was employed as a level 5 operator of equipment at Transpacific Industries, in Whyalla.  The appellant and his partner, Ms Teri Gelligen, had recently separated.  Ms Gelligen gave evidence that her relationship with the appellant commenced in February 2013.  She was living at her home in Whyalla.  In approximately May 2013, the appellant moved into her home.  She said that the relationship deteriorated.  She spoke of “emotional and drinking problems”, as well as “mental anguish”.  The appellant’s drinking was a cause of argument.  The appellant would drink several times a week, sometimes heavily.  She said that the appellant could consume as much as a couple of bottles of spirits in a session.  Sometimes the liquor would make the appellant happy and, at other times, it would make him angry.

6. Ms Gelligen gave evidence that there were occasions when the appellant was scheduled to work, but would not have passed the alcohol screening test conducted at the beginning of each shift by his employer.  She estimated that at least once a fortnight, for this reason, either she or he would telephone the appellant’s employer and advise that he was sick and would not be attending work. 

7. Ms Gelligen said that there were occasions when the appellant threatened to kill himself.  Approximately once a month he would threaten to commit suicide by driving into a truck.  These threats were only made when he was drinking.

8. On 11 December 2014, Ms Gelligen asked the appellant to move out of her house.  She told him she was not ending the relationship, but she needed space and time to sort herself out.  That night, numerous text messages were exchanged between them.  One sent by the appellant ended with the words “I’m done time to start this car and do what I do best”, followed by another saying “love you good by”.  Ms Gelligen said she interpreted these messages to mean that the appellant was going to crash his vehicle.  Later, he sent this message:

   I hope you never hold this against me xxxxx but the time has come.

   Later again, he sent this message:

   Like I said.  When I put my mind to something I have been building up to this all night and I’m not backing out now.

   At 12.14 am the appellant sent another message saying:

   Just wanted to hear your voice one more time cause IV done it.

   At 12.21 am he sent a picture of his cut wrist, accompanied by the text message:

   You thought I was joking.

9. Between 12 and 28 December 2014, the appellant and Ms Gelligen maintained frequent contact by telephone and sometimes in person.  It appeared that during that time he was sleeping in his vehicle.

10. On the morning of 28 December 2014, the appellant arrived at Ms Gelligen’s house. After a while they argued and he became upset and left.   The appellant returned between 8.30 and 9.00 pm that night in a conciliatory mood.  She said she could smell alcohol on him.  She told the appellant she was happy for him to sleep in his car outside her house.  However, she was “frustrated and upset” and they were not getting on.  After about 20 minutes he “took off”.  Ms Gelligen then locked the house.  The appellant arrived back and wanted to be let in.  He asked her for “one last hug before I go do this”.  Ms Gelligen refused and the appellant drove off.  Ms Gelligen was sufficiently concerned to call the police.

11. The appellant posted a series of messages on his Facebook page between 11.06 and 11.42 pm, including the following:

    23.06I’m done and feel so ashamed I’m doing it like this my only request is that Teri gellegen does not come to my funeral cause she lied to me.  tell matt. kirk..And bath that I love them

    23.14I’m sorry guys I cant do this anymore please make sure tez is ok

    23.22The pain ends now

    23.26Fuck you all the only good thing in.  My life I destroyed in done

    23.42Haha fuck you always there for me ha joke I’m not backing down have a good life

12. The collision occurred about 40 minutes after the last posting at about 12.20 am on 29 December 2014, approximately 17.5 kilometres west of Whyalla on the Lincoln Highway.  After the collision, the appellant spoke to persons who had come across the scene and stopped to help.  The appellant told one witness to “fuck off, leave me alone, I just want to die”.  To another he said he had “fucked up” and that his “wife” would “kill him”. 

13. The appellant’s blood alcohol level was found to have been 0.134 per cent at 3.30 am.  Pharmacologist, Professor White, estimated that the appellant’s blood alcohol level at the time of the collision would have been between 0.184 and 0.201 per cent.   Professor White described the potential effects on a driver of such a level.  Those included slow reactions, difficulty in complex situations, more errors in operating a vehicle and a greater likelihood of risky behaviour.  A heavy drinker would have a lesser level of impairment, but still a significant impairment.  The risk of suicide attempts by an intoxicated person would be increased.  In cross‑examination Professor White agreed that this level could lead to sedation and lapses of concentration.  There could be confusion in the thought processes.  Professor White said that persons with a level of 0.2 per cent “tend to focus more on the here and now rather than taking into account the long-term consequences of their behaviour”.

14. Senior Sergeant Kuchenmeister of the Major Crash Investigation section of the police force inspected the scene of the collision a few hours later.  He said that the physical evidence at the scene showed that the vehicles hit “pretty much head‑on”, with both vehicles being in Mr Moore’s traffic lane.  He said that, prior to the collision, the appellant’s car had been travelling in a straight line in that lane.  There was no physical evidence suggesting either car had braked or swerved prior to impact.

15. The surviving passengers in Mr Moore’s vehicle could not describe the event. 

16. The appellant gave evidence in his defence.  He conceded that there were times when he would not go to work because he had a blood alcohol level.  He said this occurred in 2014 “maybe once a month”.  The appellant said that he had been threatening to kill himself for “maybe my entire adult life”.  He said that he suffered depression and did not dispute that he had threatened suicide to Ms Gelligen.  He did so to get attention, or to get Ms Gelligen “to snap”.  He said he may have told her he would kill himself by driving into a truck “half a dozen” times. 

17. The appellant said that after leaving Ms Gelligen’s house that night, he spent time at a park on the outskirts of Whyalla.  Later, he drove along the Lincoln Highway intending to reach a dirt road about 30 kilometres away where he planned to sleep.  He said he did not remain at the park because he did not want to be caught drink-driving. He said police regularly patrol that area. The appellant denied intentionally driving into the Pajero and denied wanting to kill himself.

    Arguments on appeal

18. The only ground of appeal relates to the trial Judge’s summing up to the jury.  At trial, it was not disputed that the appellant’s conduct caused the death of the victims.  However, that the appellant drove his vehicle into the path of the Pajero deliberately was in dispute (element 2), as was that he had the intention to kill or cause grievous bodily harm to the victims, or was reckless as to the killing of or causing grievous bodily harm to them (element 3). 

19. The appellant’s counsel, Mr Mead SC, acknowledged that the Judge correctly instructed the jury on the elements of murder and accurately summarised for the jury the evidence going to the appellant’s intoxication.  Mr Mead acknowledged that several times the Judge instructed the jury that the evidence of intoxication was relevant, not only to the second element, but also the third element.  For example, in the course of explaining the elements of the murder sequentially, the Judge said this:

    So once again the matter of the accused’s intoxication in relation to this third element of the crime of murder, that is whether the accused possessed the necessary intention as I have explained it to you, to kill or cause grievous bodily harm or was reckless in the sense I have just explained, is very relevant to your consideration of both the second and the third elements.

    And later, having summarised the pharmacologist, Professor White’s evidence, the Judge said this:

    The question of alcohol is, as I said, also of particular importance in relation to that third element and not just the second element, the third element of intention.  That is, whether you are satisfied beyond reasonable doubt that the accused had the specific intention to kill or at least cause grievous bodily harm or, as I explained to you, was reckless in the sense that he foresaw that the driving of the vehicle on the wrong side of the road would probably cause death or grievous bodily harm but determined to proceed notwithstanding.

20. Mr Mead’s complaint is that the Judge gave inadequate direction to the jury in terms of the way in which evidence of intoxication could bear on the third element.  It was put that the Judge tended to discuss the ways in which alcohol was relevant to proof of elements 2 and 3 by grouping both elements together, but then only detailed those possible effects of alcohol which were relevant to proof of deliberation.  Counsel pointed to the following passage as best illustrating that complaint:

    Actions which might very easily give rise to an inference of an intention to at least cause grievous bodily harm might not so readily give rise to the inference of that intention when a man is really intoxicated.  These are all matters for you to consider.  When you are considering what the state of mind of the accused was that night, whatever his actions were, and that is a matter for you too, you will take into account however the effect, as you find it to have been, of the alcohol he consumed.

    It might be that he acted in a more unrestrained manner than usual because of the intoxication.  It might have affected his perception of the events occurring around him on that night.  It may have affected his ability to see on the roadway or it may have caused him to drift off into sleep even for a few seconds or lose concentration.  All of these are matters for you and for you alone to assess, but I want to make it clear in giving you these directions, if there is any reasonable possibility that the accused did simply drift off to sleep or blacked out and did not consciously and deliberately make the decision to drive on the incorrect side of the roadway into the Pajero, then the prosecution would not have proved either that the act of driving the Pajero was deliberate, that is element two, or that the accused possessed the necessary intention to kill or cause grievous bodily harm, that is the third element of murder.

21. Counsel acknowledged that the Judge had directed the jury that, even if it found that the appellant deliberately drove into the path of the deceased’s vehicle, it still had to consider whether the prosecution had proved that the appellant was (at least) aware of the probability that death or grievous bodily harm would be caused to the occupants and that he determined to go ahead regardless.  However, he submitted that the Judge needed to go on to direct that this separate question had to be determined in light of slightly different aspects of the evidence about the effects of the relevant level of alcohol on a person and a driver.  In particular, it was argued that, here, reference should have been made to the evidence of Professor White that a person with a blood alcohol level of 0.2 per cent could be confused in his thinking and would tend to focus on the “here and now”, rather than on the “long-term consequences” of his behaviour.  Mr Mead put that, while an inference of advertence to consequences might be readily drawn where the offending driver was sober, it was not so easy in the case of an intoxicated driver.  Such a person might have thought only of himself and his plan to end his life and not about the impact of his action on others.  This needed to be brought home to the jury.

22. Mr Mead highlighted the Judge’s summary of her directions on intoxication, referring to this passage.

    So just before I move off this topic of intoxication, to sum up what I have said to you before lunch in relation to intoxication of the accused in relation to both the second and third elements of the crime of murder, if there is any reasonable possibility that the accused, by reason of intoxication, either did not form the basic intention to drive the vehicle on the wrong side of the road into the oncoming traffic or otherwise if it is reasonably possible that the act of driving on the wrong side of the road was not deliberate, or if there is any reasonable possibility that he did not possess the necessary intention to kill or cause grievous bodily harm to the occupants of the oncoming vehicle at the time of the collision, or the necessary foresight to appreciate and did appreciate the probability that someone would be killed or seriously injured at the time of the collision, then the prosecution would have failed to prove the second or the third element, depending on what view you take of the evidence, of the crime of murder, and in that event the accused would be entitled to be acquitted of the crime of murder.

    Counsel argued that in the entirety of the treatment of intoxication, there had not been a specific direction about the particular way in which the evidence about intoxication could be relevant to element 3.  The jury might have been left thinking that intoxication bore on elements 2 and 3 in the same way.

23. Mr Mead emphasised that proof of the third element, as well as the second, was always a live issue at trial.  In his final address, defence counsel specifically mentioned it.  He said:

    So the defence submission is given his high, his significant intoxication, it’s difficult to be satisfied beyond reasonable doubt that he had any specific intention or even thought about the possibility of causing death or really serious injury.  In fact you might think a person so drunk is perhaps selfish and only thinking about themselves and how to get home or where they want to sleep.

24. Mr Mead acknowledged that neither the prosecuting counsel nor the defence counsel – both of whom are very experienced in criminal law – made any complaint about the terms of the summing up.

25. In respect of the way in which evidence of intoxication could bear on proof of specific intent, Mr Mead referred to the statement of principle by Barwick CJ in Viro v The Queen (1976-1978) 141 CLR 88 at 112. The Chief Justice said that it was not enough in a case involving intoxication to instruct a jury that the prosecution must prove that the accused had the requisite intent. He said:

    They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed.  It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out.  However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.

26. Mr Mead referred to R v Shinner (1993) 173 LSJS 384 and R v Wingfield (1994) 176 LSJS 14 in support of his contention that, in cases where intoxication was an issue, the summing up needed to specifically link that evidence with the directions on the elements of the offence.

27. Shinner was convicted after a trial by jury for the murder of one Esplin.  The appellant, the co-accused Esplin and two others participated in a drinking session in the south parklands.  A dispute arose as to the purchase of an additional cask of wine, and that led to violence.  The deceased suffered blows from punches and kicks and lay for a time in an injured condition in the parklands.  Although he suffered no skull or facial fractures, he died from a subdural haemorrhage. The prosecution called evidence from one of the members of the group to the effect that the appellant had punched and kicked the deceased in the head and that the deceased then ran away.  The appellant said he was going to “drop” the deceased and ran after him.  The witness said she saw him kick the deceased in the head about ten times.  The witness said the appellant appeared to be very angry and was “tipsy”.  Although the appellant acknowledged in evidence that he had punched the deceased and kicked him in the ribs several times, he also said that the deceased’s head had made contact with a tap when he was being cleaned up.  Accordingly, all elements of the charge were in issue.

1. Although the trial Judge in Shinner’s Case gave extensive directions on the topic of intoxication and on the elements making up the crime of murder, he did not link the two.  King CJ, with whom Millhouse and Debelle JJ agreed, noted that the cause of the quarrel was not of such a kind as would be likely to lead to a person forming the specific intent to kill or cause grievous bodily harm.  Further, while it might be relatively easy to infer the necessary specific intent from the actions of the appellant if sober, the critical issue was whether that inference could be drawn having regard to his intoxicated condition.  His Honour observed that a summing up is not a theoretical exposition of the law.  (Elsewhere it was noted that the summing up ran to more than 122 pages of transcript.)  King CJ observed that jurors are easily overburdened by excessive legal directions and that a good summing up crystallises the legal issues in a way which simplifies the jury’s task of applying the legal principles to the facts as found.  The Chief Justice was left with “an uneasy impression” that the jury might not have been made sufficiently aware of the precise issues to be resolved.  Even accepting the prosecution witnesses, it was necessary for the jury to consider whether any contact with the deceased’s head by the appellant’s foot was deliberate, as well as whether, if there were such deliberate contact, it was accompanied by the relevant intention.  The bearing which the appellant’s intoxication had on the possible drawing of these inferences needed to be clearly explained.  In the circumstances, the conviction for murder was quashed and a verdict of manslaughter substituted.

2. In R v Wingfield, this Court again quashed a conviction for murder and substituted a verdict of manslaughter.  The victim of the crime was a child of about 18 months of age.  The appellant’s de facto wife described the appellant arriving home affected by liquor and acting in a violent manner towards the child, who had been cared for by the couple for several months.  The witness described the appellant dropping the child on the floor and onto a swag, kicking him in the head with a bare foot and striking him to the face and head.  The following day, the appellant’s wife took the child to hospital and he was found to have injuries to the head and fractures of both arms.  He died from the effects of a closed head injury. 

3. The principal forensic issue at Wingfield’s trial was whether the child had sustained those injuries at the hands of the appellant or his wife.  But even if that issue were determined against the appellant, the jury still had to consider whether the appellant had the necessary intention to cause grievous bodily harm.  Again, King CJ, with whom Bollen and Mullighan JJ agreed, observed that if the injuries were caused by a sober person, an intention to do grievous bodily harm would be readily inferred.  However, the appellant had no rational cause to inflict such harm on the child, and he had been drunk.  Those circumstances required a direction as to the bearing of the appellant’s intoxication on the question of formation of intention.  In addition to this complaint, there was also a misdescription of grievous bodily harm as serious bodily harm.  King CJ was not confident that the jury applied the correct test for determining whether the specific intention required was present.  Still further, King CJ found that a remark made by the Judge – described as “particularly unfortunate” – could have led the jury to infer that if the injuries amounted to grievous bodily harm, then that was sufficient to prove the intention.  The Chief Justice said at p 17:

   The utmost care was required in directing the jury as to the bearing of his intoxication upon the issue of intention.  Unfortunately I think that there was a degree of confusion and inadequacy in the directions which were given on the topic in this charge to the jury.

   The Chief Justice also found that, although counsel for Wingfield had sought a re‑direction on this very question at the end of the summing up, the re-direction given might well have confused the jury still more. 

4. As in the case of Shinner, critical to this decision was the fact that there was no apparent rational motive to kill or cause grievous bodily harm to the victim and the summing up failed to bring home to the jury that intention to cause death or grievous bodily harm could not necessarily be inferred from the type of injuries inflicted in circumstances where the appellant was intoxicated.  In addition, because Wingfield’s defence was that he had not beaten the child, his counsel had not addressed the jury on the need to consider intoxication in relation to proof of specific intention.  Therefore, it was all the more important that the Judge raised and dealt with that issue. 

   Consideration

5. The present appellant’s complaint has to be considered in the context of a four day trial in which the evidence was of narrow compass, the only issue was the appellant’s state of mind at the time of the collision, the summing up occupied one hour, and where it is not suggested that the Judge made any error of fact or law.

6. The complaint comes down to this.  That although the Judge summarised the important part of Professor White’s evidence and directed the jury a number of times that the evidence of intoxication was relevant to both the second and third elements of murder, the Judge did not specifically mention the evidence raising the possibility of confusion and lack of advertence to “long-term consequences” in an intoxicated man when directing on the third element.

7. I do not consider there is any room for thinking that the jury was left unaware of the need to undertake a separate consideration of the bearing of the appellant’s intoxication on proof of the third element.  Professor White’s evidence was clear.  Defence counsel highlighted its relationship to both basic and specific intent and the Judge’s summing up repeatedly linked the issue of the appellant’s intoxication with the third element.  The whole of the evidence was directed to the appellant’s state of mind and the bearing that intoxication may have had upon it.  The jury’s task was clear.

8. Furthermore, as a matter of practical reality, there was no scope for a finding that the appellant deliberately drove his vehicle into the path of the oncoming vehicle intending to end his life (as he had threatened to do), yet did not advert to the probability that grievous bodily harm would be caused to the occupants of the Pajero. The awareness of consequences involved in executing that plan could hardly exclude a contemplation of the likelihood of really serious injury to others.  That likelihood could barely answer the description of a long-term consequence. It is no doubt, for that reason, that the thrust of the defence case was directed at the issue of proof of deliberation in driving into the victims’ vehicle.  It is not surprising that the summing up, reflecting that position, placed more emphasis on the second element.

   Conclusion

9. I do not consider that the summing up was deficient.  It is not surprising that experienced counsel raised no complaint about it after its delivery.

10. For these reasons, I would dismiss the appeal.

11. DOYLE J:             I would dismiss the appeal.  I agree with the reasons of Vanstone J.