R v Kruithof

Case [2018] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kruithof [2018] QCA 119

PARTIES:

R
v
KRUITHOF, Dallin James
(appellant)

FILE NO/S:

CA No 23 of 2017
SC No 1034 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 9 February 2017 (Ann Lyons J)

DELIVERED ON:

12 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2017

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDER:

Dismiss the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where the appellant was convicted by a jury of murder – where the appellant formally admitted at trial that the appellant fired the four shots and that they caused the death of the deceased – where there were a number of recordings of conversations between the police and the appellant – where one recording was relied upon at trial by both the Crown and defence as evidencing that the appellant said the word “No” – where the appellant argued it was an error to rely on the recording when it was “objectively equivocal and ambiguous” – where the appellant claimed it was “kill or be killed” – where intention remained in issue but the key issue was self-defence – where the Crown argued they relied on post-offence conduct to negative self-defence, not to prove intent – where a key witness gave section 13A evidence to the police and was on drugs at all relevant times – whether there was a miscarriage of justice caused by the primary judge’s directions in relation to that particular witness – whether there was a miscarriage of justice caused by the primary judge’s failure to direct the jury that they could not use evidence of post-offence conduct as proof of the appellant’s intention to kill – whether there was a miscarriage of justice caused by treating a recording as evidencing that the appellant said the word “No”

Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, cited

COUNSEL:

S Holt QC for the appellant
G P Cash QC for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  At about 3.30 am on 6 February 2014 residents in a residential street in Tingalpa heard five quick gunshots.  A car sped off into the distance without lights.  They found a man lying on the road.  His name was Russell Mark Johnstone and he had been shot four times.  He died from his wounds.

  2. The unchallenged evidence at the trial was that it was the appellant who had shot Russell Johnstone to death and the jury convicted him of murder.

  3. Four bullets, of the five that the appellant had fired, had hit his victim.  One bullet had entered the top of Johnstone’s head.  It had travelled downward through his brain to the base of his skull.  Another bullet had entered his upper back…

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AGLC
R v Kruithof [2018] QCA 119
Case
[2018] QCA 119
Decision Date

CaseChat Overview and Summary

In the case of R v Kruithof, the appellant was convicted of murder and appealed against his conviction. The appeal centred on three grounds: the trial judge's directions regarding a witness's evidence, the failure to direct the jury on the use of post-offence conduct as evidence of intention, and the treatment of an equivocal recording as evidence of a statement against interest. The court was tasked with determining whether these issues caused a miscarriage of justice.

The first ground of appeal related to the trial judge's directions concerning the evidence of Calvin Clack, a key witness who gave evidence under section 13A. Clack had been on drugs at the relevant times and had previous convictions. The court examined whether the trial judge's directions adequately cautioned the jury about the reliability of Clack's evidence. The second ground of appeal focused on whether the trial judge should have directed the jury that post-offence conduct could not be used to prove the appellant's intention. The Crown argued that this conduct was used to negate self-defence rather than to prove intent. The third ground of appeal concerned the interpretation of a recording where the appellant was said to have responded "No," which the appellant argued was equivocal and ambiguous.

The court concluded that while the trial judge's directions about Clack's evidence did not provide a complete picture, the jury's consideration of all evidence suggested they understood the limitations of Clack's testimony. Regarding the use of post-offence conduct, the court found that the Crown's reliance on this conduct was to negate self-defence, not to prove intent. Lastly, the court determined that treating the recording as evidencing the appellant's statement was not a substantial error given the context and subsequent clarifications. Thus, the appeal was dismissed.

Orders

Orders of the court

Dismiss the appeal.

Background

Background to the litigation

Three grounds of appeal are relied upon by the appellant. First, that a miscarriage of justice was caused by the trial judge’s directions in relation to the evidence of a witness, Calvin Clack. Second, that a miscarriage of justice was caused by the trial judge’s failure to direct the jury that they could not use evidence of post-offence conduct as proof of the appellant’s intention. Third, that a miscarriage of justice was caused because the recording of a claimed statement against interest was objectively equivocal and ambiguous but treated at trial as having been made by the appellant.Background The appellant was born on 17 August 1990. He was aged 23 at the time of the offence. The deceased was born on 9 February 1990. He was aged 24 years at the date of his death. The deceased weighed 122 kilograms and was 182 cm tall. At trial the pathologist described the deceased as “quite a solid, muscular person”.[6][6]AB 93/34. The deceased and the appellant knew each other and were together in the early hours of 6 February 2014, when the deceased sustained four gunshot wounds. The weapon was a .38 Smith and Wesson calibre five shot revolver. All five rounds were discharged by the appellant at the deceased. Four bullets struck the deceased. The fifth missed its target.Admissions The appellant formally admitted at trial that the appellant fired those four shots at about 3.30 am and that they caused the death of the deceased on 10 February 2014. The appellant also admitted that he and the deceased travelled together to the scene of the shooting in his dark blue Jaguar sedan and that late on the night of 11 February 2014 the appellant set fire to and destroyed that vehicle. The appellant admitted at trial that after the deceased was shot he placed the revolver in a small safe which he later buried in bushland. On 2 July 2015, the appellant took police to that location. The safe and its contents, including the revolver, were recovered by police. Relevantly the appellant also admitted that at about 7.32 am on 6 February 2014 he instructed his younger brother to advise their sister to retrieve her dogs from the appellant’s house as he could no longer live there for a while; that between 6 February 2014 and 17 February 2014, the appellant stayed at accommodation in Mt Ommaney and Kangaroo Point; that on 13 February 2014, the appellant purchased tickets to Amsterdam flying on China Southern Airlines; that at about 6.00 am on 17 February 2014, the appellant travelled to the airport and later departed for Amsterdam via China; that upon arrival in China the appellant was refused entry and returned to Australia; and that the appellant arrived in Australia on the morning of 18 February 2014 when he was detained by police.Trial The Crown case was that the appellant intentionally shot the deceased believing the deceased had stolen four ounces of methylamphetamine from the appellant. The Crown relied not only on this motive but also on the deceased’s post-offence conduct including hiding the cartridges in the roof of the house, burning his motor vehicle, burying the gun and ammunition, leaving his residence and ultimately fleeing the country.

Evidence

Evidence Before The Court

The defence case was that the appellant shot the deceased either because he at one point was holding the gun or in circumstances where the deceased went to reach into his jacket and the appellant believed the jacket contained a gun. The appellant contended that he acted in self-defence, either in response to an unprovoked assault with a gun, or in circumstances where the appellant believed on reasonable grounds that he could not otherwise save himself from death or grievous bodily harm.EvidenceScene At around 3.30 am on the morning of 6 February 2014, residents in Jarrow Street, Tingalpa were awoken by five noises in quick succession. Shortly after, the deceased was found lying on the roadway. Nathan Little described the noises as sounding a bit like a cap gun. Four were straight after each other. There was a pause for a millisecond and then another noise.[7] The period between the first and the fifth shot would not have been more than about two seconds.[8] Little looked outside and saw a darker coloured sedan. The car sped off down the road without lights about 20 seconds after he heard the noises.[7]AB 36/45.[8]AB 41/30. Little heard a moaning noise, more human than the cats in his neighbourhood. He saw someone in the street. He called emergency services at 3.32 in the morning. Little went outside and saw a man lying on the road, face down. He had trauma to the back of his head. He was wearing a grey jacket, dark sports pants and had a bum bag on him. Everton Dacosta was awoken by something that sounded like gunshots. There were about five of them fairly continuously, one after the other. The period from the first to the fifth shot was very short. They just went “bang bang bang bang bang”.[9] About a minute or so after the gunshots he heard a car drive off up the street. He did not hear any slamming of doors or heavy acceleration of the motor vehicle. He then heard groaning.[9]AB 47/30. Dacosta went out into the street. One of his neighbours said there was a person. Dacosta saw a person lying on the street with his head towards the gutter. His legs were towards the centre of the road diagonally. The moaning was coming from that person. Dacosta observed a slight injury to the top left side of the person’s head and another injury on the right side of the body under the arm. Scott Mullaly was also awoken by five bangs in the early hours of 6 February 2014. He described a short pause, not longer than half a second, between the second and third shots. It was “a bang, bang and then bang, bang, bang”.[10] About 10 seconds after the bangs Mullaly heard a car door close and a car take off. The time was 3.35 in the morning.[10]AB 48/45. Mullaly heard a moaning noise. He went outside and could see a figure on the ground in the distance. It was a man moaning. He was close to the gutter, facing across the road itself. The man had a blue Mt Franklin water-bottle top in his left hand. Mullaly noticed injuries to the left hand side of the head. The man was wearing white Nike shoes, a dark hoodie and had a bum bag on him around his waist.

Decision

Reasons for decision

Importantly, that answer did not occur in isolation. Shortly thereafter the appellant was expressly recorded as saying that the deceased did not have a gun on him. Against that background it cannot be said the trial judge’s failure to direct the jury to specifically consider whether the word “no” was said was of material significance to the jury’s deliberations as to whether the appellant was guilty of the offence of murder or manslaughter.Conclusions The appellant has established that the directions the subject of ground 1 of the appeal did deprive him of the chance of an acquittal. The loss of that chance gives rise to a miscarriage of justice. The acquiescence of Counsel to the directions given in the summing up do not prevent such a miscarriage of justice.[42][42]R v Murray at [36]. The deprivation of the prospect of an acquittal did give rise to a substantial miscarriage of justice. The Crown case, although strong, cannot be said to have been so overwhelming that the jury must have excluded beyond reasonable doubt that any killing occurred in self-defence. Although the appellant’s statements excluded the possibility that the deceased actually had a gun, they did not exclude the appellant’s contention that he reasonably believed at the time of the shooting that the appellant had a gun.Orders I would order:1.The appeal be allowed;2.The verdict of guilty of murder be set aside;3.There be a re-trial.

Ratio Decidendi

Legal Principle Established

In any event, the trial judge’s acceptance of the correctness of the appellant’s negative response was contextually and probably actually correct. After the impugned statement the appellant was recorded, after a long pause, to have said:“No he didn’t have a gun on him. No he didn’t …”That answer removed any possible uncertainty as to the earlier answer. The appellant was recorded as saying that Clack “made a lot of stuff up” which would have been relevant to the jury’s assessment of that part of Clack’s testimony. Finally, if the manner in which the trial judge dealt with this issue produced a miscarriage of justice, it was not a substantial miscarriage of justice.ConsiderationGround 1 The trial judge, after making general observations in the summing up as to the acceptance of a witness’ evidence, directed the jury:“… Mr Clack gave evidence that he has previous convictions and he has been in jail before. We also know that he said he was affected by drugs on the night, so you can take that into account. The fact that someone has previous convictions does not necessarily mean his evidence is to be rejected. It is a matter for you what weight you give his evidence given the fact he has accepted he has been in jail and he has got previous convictions.He also agreed that he has agreed to give evidence in this case and the effect of that is it will reduce his own sentence when he is sentenced for other charges. Under Queensland sentencing law, sentences may be reduced by the Court where the offender undertakes to co-operate with law enforcement authorities by giving evidence against someone else. If an offender receives a reduced sentence because of that co-operation and then does not co-operate, in accordance with his undertaking, the proceedings can be reopened and a different sentence imposed. You can see, therefore, that there could be a strong incentive for a person to implicate another person when giving evidence, so you should scrutinise Mr Clack’s evidence with care. You should only act on it after considering it, and all the other evidence in the case, that you are convinced of its truth and accuracy.So, having giving you those warnings, it is for you to look at that evidence, but I would suggest to you, having considered Mr Clack in the witness box, as Ms Loury said, he clearly did not want to be here, but you might consider that he was endeavouring to give a truthful account of what happened on the night, so, whilst I have given you those warnings, of course, you have to take that into account, you saw him, what did you think in relation to his evidence?You might consider that he was answering carefully and that, indeed, he did not try to paint himself into a good light, but he was genuinely trying to recall what was said and what occurred. If, after you had considered his evidence, you are satisfied he is a truthful and accurate witness, you can act on his evidence notwithstanding those matters I have already referred you to.”