R v Lovegrove

Case [2007] SASC 283

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LOVEGROVE

[2007] SASC 283

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice Layton)

1 August 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION

Appeal against conviction - complaint as to adequacy of directions with respect to defence case evidence of deceased's propensity to violence and statements made by the appellant on admission to hospital - whether misdirection as to the question of intent - no miscarriage of justice as a result of notes from jury not being read on to transcript - appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence - appellant convicted of murder - whether non-parole period of 16 years manifestly excessive - whether trial judge erred in failing to take into account shorter life expectancy of aboriginal males - permission to appeal refused.

Vallance v The Queen (1961) 108 CLR 57; Inge v The Queen (1999) 199 CLR 295, applied.
R v Moloney [1985] 1 AC 905; R v Crabbe (1985) 156 CLR 464; R v Green (1949) 34 CrAppR 33; R v Ion (1950) 34 CrAppR 152; R v Crowe (1985) 16 ACrimR 478; R v Yuill (1994) 34 NSWLR 179; Re Knowles [1984] VR 751; R v PP (2002) 135 ACrimR 575; Black v R (1993) 279 CLR 44; R v Stewart (1984) 35 SASR 477, considered.

R v LOVEGROVE
[2007] SASC 283

Court of Criminal Appeal: Nyland, Anderson and Layton JJ

  1. NYLAND J:          This is an appeal against conviction and sentence. 

  2. On 1 September 2006, the appellant was convicted of the murder of Vicki Koch at Maylands on 17 April 2005.   On 28 September 2006, the appellant was sentenced to life imprisonment with a non-parole period of 16 years.

  3. On 21 September 2006, the appellant filed an application for permission to appeal against his conviction.  On 19 October 2006, he filed an application for permission to appeal against sentence.

  4. The application for permission to appeal against conviction contained 12 proposed grounds of appeal.  On 23 February 2007, permission to appeal against conviction was granted with respect to ground 5 only, that being a complaint as to the judge’s direction to the jury concerning the issue of intent as it related to murder.  Permission to appeal against sentence was refused.  On the hearing of the appeal the appellant did not pursue proposed grounds 3, 6 and 10 but sought permission from the court to appeal with respect to the remaining grounds upon which permission was refused in addition to ground 5 upon which permission was granted.  The appellant also sought permission to appeal against sentence.  In order to determine those matters, the court heard the substantive argument…

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AGLC
R v Lovegrove [2007] SASC 283
Case
[2007] SASC 283
Decision Date

CaseChat Overview and Summary

In R v Lovegrove, the appellant sought to appeal his conviction and sentence for the murder of Ms Koch. The appeal against conviction centred on the adequacy of the trial judge’s directions to the jury regarding the defence case, specifically the evidence of Ms Koch’s propensity for violence and the statements made by the appellant upon his admission to hospital. The appeal against sentence contested whether the non-parole period of 16 years was manifestly excessive, and if the trial judge had erred by not considering the shorter life expectancy of Aboriginal males. The court granted permission to appeal against conviction on one specific ground, namely, the judge’s direction to the jury concerning the issue of intent in relation to murder. Permission to appeal against sentence was refused.

The primary legal issue was whether the trial judge's directions to the jury were adequate, particularly in relation to the defence's evidence of Ms Koch's propensity for violence and the statements made by the appellant. The appellant argued that the judge's directions may have misled the jury on the question of intent. The court also needed to determine if the omission of a jury note from the trial transcript resulted in a miscarriage of justice. Additionally, the court had to assess if the trial judge erred in setting the non-parole period for the appellant's sentence, considering his Aboriginal background and its impact on life expectancy.

The court found that while the trial judge did deviate from the norm by not reading the jury's note into the transcript, this did not result in a miscarriage of justice. The judge had provided appropriate further directions to the jury in response to their evident difficulty in understanding the concept of the ordinary man in the context of provocation. The court concluded that the questions posed by the jury would likely have been answered similarly even if the exact contents of the note had been disclosed. Consequently, the appeal against conviction was dismissed. Regarding the sentence, the court found no error in the trial judge's determination and denied the appeal against sentence.

The court made no further orders beyond dismissing the appeal against conviction and denying permission to appeal against sentence.

Orders

Orders of the court

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Background

Background to the litigation

The application for permission to appeal against conviction contained 12 proposed grounds of appeal. On 23 February 2007, permission to appeal against conviction was granted with respect to ground 5 only, that being a complaint as to the judge’s direction to the jury concerning the issue of intent as it related to murder. Permission to appeal against sentence was refused. On the hearing of the appeal the appellant did not pursue proposed grounds 3, 6 and 10 but sought permission from the court to appeal with respect to the remaining grounds upon which permission was refused in addition to ground 5 upon which permission was granted. The appellant also sought permission to appeal against sentence. In order to determine those matters, the court heard the substantive argument as to each of them.Background: The appellant entered into a relationship with Ms Koch in about September 2004 and on 17 April 2005 they were residing together in the appellant’s unit at Maylands. It was the prosecution case at trial that the appellant murdered Ms Koch on the day in question by stabbing her about ten times in the chest. At about 8 pm, a neighbour of the appellant saw him outside the unit. The appellant appeared to have blood on his clothing and upper body. The neighbour called an ambulance and when ambulance officers entered the unit they found the appellant lying on the floor of the bathroom in a semi-conscious state. The appellant was given treatment for an injury to his left arm. The rest of the unit was checked in the course of which the body of Ms Koch was located on the bed in the bedroom. A steak knife was on the bed in close proximity to her head. There was blood on the floor, doors and on the walls of the bedroom as well as damage to the window. Glass from the broken window was found in Ms Koch’s hair. The appellant was taken to the Royal Adelaide Hospital for treatment of his wounds. Evidence was given at trial by a number of witnesses who treated the appellant on his admission to the hospital. Nurse Jones said that the appellant’s eyes were “clenched close” and that he was mumbling that he was “very sorry” he “didn’t mean to” and “I think I killed my partner”. Nurse Czernezkyj reported the appellant as having said either “I stabbed her” or “I killed her”. Another witness, Ms Haywood (now Dr Haywood) gave evidence that the appellant said he “had just killed his girlfriend”. A blood test taken at the hospital disclosed that the appellant had a blood alcohol level of .145%, and methadone of .12%. Diazepam and a low level of cannabis was also found in his blood. Ms Koch’s blood was later tested and disclosed that at the time of her death she had a blood alcohol level of .23% and methadone at .4% as well as diazepam and cannabis. Dr Cala was the pathologist who examined the body. He said Ms Koch weighed 45 kgs and was 161 cms tall. Dr Cala found a number of minor injuries to the body by way of bruises and abrasions. There were ten wounds to her chest. Dr Cala said the cause of death was multiple stab wounds, seven of which would probably have been fatal of themselves as they had penetrated vital organs including the heart.

Evidence

Evidence Before The Court

Although the judge appears to have deviated from the basic rule in not reading this note into the transcript, I do not think that has given rise to a miscarriage of justice which would require this court to interfere. It is obvious from the contents of the note that the jury was continuing to have difficulty in understanding the concept of the ordinary man as it related to the topic of provocation, and the judge correctly informed the parties that appeared to be the case. She discussed with counsel what she should say by way of a further direction on that topic and the answers she then gave were appropriate to the questions asked. In my opinion, it was unlikely that the questions would have been answered any differently had the exact contents of the note been disclosed to counsel before the further direction was given. I would refuse permission to appeal with respect to this ground.Proposed ground 11 - the evidence of Dr Cala: The appellant complains that the learned trial judge erred in her directions to the jury in failing to correct the prosecutor’s misuse in his final address of the evidence of Dr Cala. Dr Cala carried out the post-mortem examination of the deceased on 18 April 2006. He gave evidence as to the various injuries he had observed and produced a body chart (Exhibit P10) depicting the position of those wounds. This included ten stab wounds to Ms Koch’s chest in close proximity to each other. The prosecutor led detailed evidence from Dr Cala as to the measurements and possible trajectory of each of those wounds. In his address, the prosecutor referred to the evidence from the crime scene to suggest that Ms Koch was lying on her back on the bed when she received the fatal wounds. He later reminded the jury of Dr Cala’s evidence and put to them that, on the prosecution case, the trajectory of all of the wounds was very similar and that eight were almost identical. He described them as roughly vertical and suggested that Ms Koch had not been struggling or moving when she had received those wounds and was therefore not able to evade her attacker. The prosecutor also referred to the grouped nature of the wounds and suggested to the jury that these were matters from which they could infer the intention of the appellant to kill or cause grievous bodily harm. Defence counsel in his address was critical of the approach taken by the prosecutor. He suggested to the jury that the evidence of Dr Cala was the exact opposite of what had been put to them by the prosecutor. He told them that the prosecutor’s theory as to the position of Ms Koch when the wounds had been inflicted had never been put to Dr Cala. Counsel also reminded the jury that the targeted or grouped nature of the wounds was equally consistent with having occurred in an incident which was over in seconds and in that way that evidence supported the defence case. In her summing up, the judge dealt with the evidence of Dr Cala in quite neutral terms. She referred to Dr Cala’s evidence that Ms Koch had died of multiple stab wounds and said that the jury would probably have no difficulty with the first element, that is that the [appellant] caused the death of Ms Koch. She later said:Dr Cala was the pathologist who examined the body. The deceased was found to weigh 45 kg and she was 161 cm tall. He found a number of minor injuries to the body by way of bruises and abrasions. Then there were the ten stab wounds to the deceased’s chest. As I mentioned, the cause of death was multiple stab wounds. Dr Cala said that perhaps seven of those would probably have been fatal of themselves. Those were the ones which penetrated vital organs, including the heart. He said all would have caused bleeding, internally at least. He could not say how quickly death would have followed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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