R v LYNCH - [2006] SASC 315

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LYNCH
[2006] SASC 315
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Layton and The Honourable Justice David)
13 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeal against conviction - appellant convicted of manslaughter by jury - the trial judge directed the jury to follow their "instincts" when considering the evidence - whether this direction was an error - whether the trial judge gave adequate direction in relation to causation - whether the trial judge gave the jury adequate direction in relation to the element of an unlawful and dangerous act - the trial judge gave an example of what would not amount to self-defence that mirrored the facts of the case - whether this direction unfairly influenced the jury towards its verdict - held, appeal dismissed - viewed as a whole, the trial judge gave adequate directions to the jury.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED
Evidence from the forensic pathologist that one could not exclude the possibility that the deceased's injuries were due to the actions of a third party - whether it follows that reasonable doubt remained that the appellant caused the death of the deceased - held, this was a matter for the jury to consider - there was sufficient evidence for the jury to be satisfied to the requisite degree that the appellant caused the deceased's injuries.
Criminal Law Consolidation Act 1935 s 13, referred to.
Wilson v R (1992) 174 CLR 313; Royall v R (1991) 172 CLR 378, applied.
R v Allen (2003) 142 A Crim R 467, distinguished.

R v LYNCH
[2006] SASC 315
Court of Criminal Appeal: Sulan, Layton and David JJ

SULAN J. I would refuse leave to appeal. I agree with the reasons of David J.
LAYTON J. I consider that leave should be refused and the appeal should be dismissed. I agree with the reasons given by David J.
DAVID J.
Introduction
The appellant was tried before a jury in the District Court with the offence of manslaughter, contrary to s 13 of the Criminal Law Consolidation Act 1935. He was convicted. He now appeals against that conviction. There are five grounds of appeal, four of which challenge certain directions given by the trial judge, and the fifth complains that the jury’s verdict was against the weight of the evidence. Leave was refused on all grounds by a single judge. The appellant seeks leave to appeal against the conviction to the Court of Criminal Appeal.
Background Facts and Issues at Trial
It was undisputed at the trial that the appellant punched Christopher Holt (“the deceased”) once in the head whilst both men were with others at the Brahma Lodge Hotel on the evening of 21 June 2004. The incident was captured on the hotel’s surveillance video (exhibit P2 at the trial). That video was shown to the jury and seen by the members of this Court on appeal.
Much of the evidence at the trial was undisputed. The deceased and a friend, Thomas Simmonette, arrived at the Brahma Lodge Hotel at approximately 7.00 pm on 21 June. They were inebriated when they arrived. At the time of their arrival the appellant and three of his friends were drinking at a table some distance from the bar area. At one stage the deceased went to the table and spoke to the group of men. He then moved over to the area of the bar and joined his friend Mr Simmonette. According to the only eye witness for the prosecution, an employee of the hotel Ms Lynnette McConnell, the appellant came over to the bar to order some drinks and something was said between the appellant and the deceased. Ms McConnell saw the deceased and the appellant holding each other, and then saw the appellant hit the deceased in the face with what she thought was a right fist, however, she conceded in cross‑examination that she was unsure as to what hand the appellant had used.
The evidence of the video shows a left‑handed punch being delivered by the appellant to the deceased. In her evidence Ms McConnell was unsure as to who grabbed who first. The video shows that although there was for a time contact between the two men, just before the punch was thrown they were not touching each other.
The evidence of Ms McConnell was that the deceased went to the ground, falling on top of Mr Simmonette on the way down. The video confirmed this. It was also Ms McConnell’s evidence, and confirmed by the video, that after the deceased was knocked to the ground his friend, Mr Simmonette, tried to lift him into a seated position on about three or four occasions. However, because of his inebriated condition he was unsuccessful. On each occasion the deceased fell back into a horizontal position from a seated position.
Mr Simmonette could not help the court at trial because he was so inebriated at the time of the incident that he could remember very little. Mr Simmonette gave evidence that he and the deceased had each consumed about ten pints of beer and five whiskeys before they arrived at the Brahma Lodge Hotel. He also gave evidence that the deceased could be very argumentative when he had a lot to drink.
Paramedics transported the deceased to the Lyell McEwin Hospital. He was diagnosed with a closed head injury, with a skull fracture, an extradural haematoma and a swollen brain. He was transferred to the Royal Adelaide Hospital where he underwent a craniotomy in the early hours of 22 June 2004.
The neurosurgeon in charge of the operation, Dr Cindy Molloy, gave evidence that the deceased developed complications whilst in intensive care after that operation. On 1 July 2004 he developed a respiratory infection. He then developed an acute metabolic acidosis, a bowel obstruction, and ultimately suffered a bowel perforation. These complications led to his death on 2 July 2004.
Dr Molloy gave evidence that after the diagnosis of his injury the deceased was treated properly and promptly. The processes undertaken in the intensive care ward following the craniotomy were appropriate. She gave evidence that the complications which arose were as a result of the original head injury. Such complications occur in a certain percentage of patients who are critically ill in intensive care. Dr Molloy was also of the opinion that the trauma which caused the skull fracture must have been quite significant.
Dr David Evans, who is a specialist in both anaesthesia and intensive care, gave evidence of the treatment of the deceased whilst in intensive care. He said that all of the appropriate standard procedures were followed relating to a patient in the deceased’s situation. He said that his death was due to him being critically unwell in intensive care with a head injury. His evidence was that it is what is called a “late trauma death from complications of the original injury”.
Dr John Gilbert, a forensic pathologist, conducted an autopsy on the deceased on 2 July 2004. He gave evidence that, in his opinion, the cause of death was due to “complications of the left sided extradural haematoma which was associated with the skull fracture of the left side of the skull, which resulted from blunt head trauma”. He was also of the opinion “that an unbroken fall from his own height to the ground and striking the left side of the head is more likely to cause the fracture and the extradural haematoma”, rather than the actions of Mr Simmonette as described. However, he added that one could not exclude the possibility that Mr Simmonette’s actions could have caused the fracture, although it was far more likely that it resulted from a more substantial fall. Dr Gilbert also gave evidence that blood samples taken from the deceased at the Lyell McEwin Hospital showed a blood alcohol level of .27 grams of alcohol in every 100 mls of blood.
One of the issues at the trial was whether the actions of Mr Simmonette in trying to lift up the deceased to a seated position and then dropping him could possibly have caused the deceased to fracture his skull. The other aspect of causation which was argued at the trial was whether the medical complications after the deceased was operated upon were an intervening cause of death.
The appellant gave evidence on oath. He said that he was drinking with two friends at the Brahma Lodge Hotel, and that at about 7.00 pm the deceased and Mr Simmonette (whom the appellant had never met before) came into the bar. The deceased appeared to be drunk, and according to the appellant, “in a shit‑stirring sort of mood” (transcript, p 202). According to the appellant, the deceased came up to their table and was arguing about football. He then walked over to the bar and joined Mr Simmonette. The appellant went to the bar to buy a round of drinks. He said that as he ordered his drinks the deceased turned around to him and said, “Don’t serve him, he is a St Kilda maggot”, to which the appellant replied, “I told you, it’s not a St Kilda jacket, I’m a Crows supporter”. Then, according to the appellant, the deceased took a couple of steps towards him, grabbed him by the right arm, shook it and said, “What colours are these, then?” The appellant said he told the deceased to let him go but his grip got tighter. The deceased appeared to be much taller and bigger than the appellant. When the deceased would not let go of his arm the appellant tried to struggle free. The deceased became very aggressive and the appellant thought that the deceased was going to hit him, so he hit him first. He said that he punched him with his left hand on the side of the cheek or jaw and the deceased fell backwards on to “Tommy” (Simmonette) and they both fell onto the ground. The appellant then walked back to his table.
The case for the defence at trial, other than the issue of causation, was self‑defence. The live issues that the jury therefore had to consider were had the prosecution proved beyond reasonable doubt:
(a)that the blow struck by the appellant was unlawful, or was it reasonably possible that he was acting in lawful self‑defence;
(b)whether the punch was a substantial cause of the death of the deceased; and
(c)if those two matters had been proved beyond reasonable doubt, whether manslaughter was the appropriate verdict, bearing in mind the criteria set out in Wilson v The Queen (1992) 174 CLR 313 at 333.
I turn to the grounds of appeal.
Ground 1 – The judge’s direction that the jury should follow their own instincts
In her direction to the jury, the trial judge said:
You the jury have the sole responsibility for determining the facts in this case and arriving at the verdict. Anything the trial judge says about the facts is simply said for your assistance. If you take a different view of the facts or of any view you might think I hold during the course of my summing up, you must act on your own view of the evidence, and not be swayed by what you may think my view is about the facts. I will not be trying to persuade you one way or another, but if you get the impression that I hold a particular view, that is not a matter that you have to be directed on; you follow your own instincts on the matter. (Emphasis added)
Ms Powell QC, counsel for the appellant, argued that by use of the word “instincts” the jury are really being told to abandon all matters of logic and rationality in undertaking their task. Her argument is that such an error in the choice of words would infect the jury’s deliberations. Ms Powell submits that a direction to a jury to use their instincts is the very antithesis of what is required. The jury should be directed to consider the evidence, apply their judgment and determine the case on the evidence. If the jury were directed to decide the case by following their instincts, that would be a misdirection.
However, in the context of the summing up as a whole, that is not the case. That part of the judge’s summing up was at a very preliminary stage when she was explaining to the jury that they must be faithful to their own view of the facts. The jury would have understood that what she meant by “your own instincts” was their own view of the matter. That interpretation is emphasised by the fact that in the remaining part of the summing up the trial judge gave clear directions of law and a clear analysis of the facts. She directed the jury that it was their assessment of the evidence that mattered.
I would reject this ground of appeal.
Ground 2 – The issue of causation
Ms Powell argues that the trial judge erred in her directions relating to causation when she directed the jury:
So, just to summarise on that first element: the fact that the victim died from complications consequent upon his treatment upon admission to hospital, you may think does not necessarily mean that the punch to his head did not cause his death in the sense that the blow to his head was a substantial and operative cause of his death, even though other factors, such as the medical complications of his treatment, contributed substantially to his death as well.
Ms Powell argues that in that passage there was no mention of the real issue of causation raised at the trial, namely the actions of Mr Simmonette. Her argument was that the intervening medical complications, although touched on in defence counsel’s address, were not the issue concerning causation at the trial.
That argument cannot be sustained when the whole summing up is considered. In an earlier passage the trial judge directed the jury in the following terms:
If you were to be satisfied beyond reasonable doubt that the skull fracture and haematoma were caused as a result of the blow to the head and the subsequent fall to the floor as a result of that blow to the head by the accused, then you might have no difficulty in concluding that the accused’s act, that is the punch to the head, was a substantial cause of the ultimate death of Mr Holt. Assuming, of course, that you do not find there is any reasonable possibility that the injury which caused the skull fracture and the haematoma was caused by Mr Simmonette’s efforts in lifting him off the floor, as the defence hypothesis suggested.
In her summary of evidence the trial judge put the defence case about causation and the actions of Mr Simmonette. Her directions on causation were factually clear and legally correct in accordance with the decision in Royall v R (1991) 172 CLR 378.
I would reject that ground of appeal.
Ground 3 – Manslaughter and unlawful and dangerous
In her directions to the jury as to the final element of manslaughter the trial judge said:
The fourth and final element which must be proved to your satisfaction beyond a reasonable doubt is that the act which caused the death of the deceased, and which was intentionally and voluntarily performed without lawful excuse, was also dangerous in the sense that a reasonable person – and I say a reasonable and sober person – would have realised that by punching the victim in the head he was exposing the victim to an appreciable risk of serious injury. That is what “dangerous” means in this context, an act that carries with it an appreciable risk of serious injury.
Now, whether the act alleged here, that is the punch to the head of the victim, answers that description in this case, will be a matter entirely for your judgment, members of the jury. But the question must be determined by asking yourselves whether a reasonable and sober person in the position of the accused would have realised that he was exposing Christopher Holt to an appreciable risk of serious injury by delivering a blow to his head in that manner in the circumstances you have heard about. (Emphasis added)
Given the nature and force and extent of the punch, the question is: would a reasonable and sober person in the accused’s position have realised that punching the victim carried with it an appreciable risk of serious injury to Mr Holt?
I remind you, members of the jury, that this is not a question of the accused’s state of mind. He may not have even have [sic] thought about the matter at all. It is a question of what a reasonable and sober person in the accused’s position would have appreciated.
So, to sum it up, if you are satisfied that the accused inflicted the punch to Mr Holt intentionally and deliberately and that there was no lawful justification for doing so in the sense that I am about to explain to you, and if that was a substantial cause of Mr Holt’s death, you will find the accused guilty of manslaughter.
Ms Powell complains of two matters in relation to the phrase “in that manner in the circumstances you have heard about” as emphasised above. First, is that the trial judge failed to clarify what circumstances she was referring to. Secondly, that the phrase may have been interpreted as meaning the appreciation of a sober reasonable person in the position of the appellant is to be judged on the circumstances as the jury has heard in evidence in the trial, as distinct from the circumstances that a reasonable and sober person in the position of the appellant faced when he delivered his blow. Ms Powell argues that the absence of clarity as to “the circumstances” brings into play the fact that the jury had heard evidence about the inebriated state of the deceased including his blood alcohol reading of 0.27 grams per hundred millilitres of blood; that after falling on the floor after the punch he was subsequently found to have a fractured skull; and that he later died. It was argued that the failure by the trial judge to appropriately articulate the circumstances in which the test should have been applied could have lead a jury to take into account factors which a reasonable and sober person in the position of the appellant at the time when he delivered the blow could not have been aware of at that time, in particular that the deceased’s level of intoxication was as great as 0.27.
In my view these arguments cannot be sustained. When looking at the whole of the passage quoted above, the trial judge is clearly referring to the realisation of a reasonable and sober person at the time when the punch was delivered and was not directing attention to what a reasonable and sober person would have realised having heard all of the evidence at trial.
On several occasions the trial judge refers to what “a reasonable and sober person in the accused’s position would have appreciated” (emphasis added). Further, on the circumstances of intoxication raised by Ms Powell, the appellant gave evidence that before he punched the deceased, he saw that the deceased “appeared drunk, he appeared in a shit-stirring sort of mood” (transcript, p 202), was loud, he was “… sort of slurring his speech a bit. You couldn’t understand everything he was saying (transcript, p 210). Even without knowing that the blood alcohol level of the deceased was 0.27, it was open for the jury to find that a reasonable and sober person in the circumstances of the appellant, would have realised at the time of punching the deceased, whom he had noted appeared intoxicated, carried with it an appreciable risk of serious injury to the deceased.
In my view her directions to the jury on manslaughter by an unlawful and dangerous act were correct and in accord with the principles set out in Wilson v The Queen (1992) 174 CLR 313.
I would reject that ground of appeal.
Ground 4 – Directions in relation to self-defence

Although there is no argument about the trial judge’s directions of law about self-defence, Ms Powell argues that in giving a factual example of what would not amount to self-defence, the trial judge used an example which mirrored the facts of the case. As a result the direction was unfair and amounted to influencing the jury towards its verdict. The relevant passage about which Ms Powell complains is:
Nor would a person be acting in self-defence if he was responding in anger, to use an example closer to home, to some loud-mouth taunt of some abusive drunk.
Ms Powell relied upon the decision of this Court in R v Allen (2003) 142 A Crim R 467. That case dealt with a charge of causing death by dangerous driving resulting from a collision in an overtaking accident. In explaining to the jury what is meant by dangerous driving, the trial judge gave an example which was considered to be inappropriate by this Court because it was almost identical with the facts of the case. However, the distinction between Allen’s case and the present case is that the example given by the trial judge in Allen’s case “compounded his failure to put the defence case”: Allen per Gray J at 482. In the present case there is a clear distinction between the prosecution case and the defence case. The judge clearly and thoroughly put the defence case, and distinguished it from the prosecution case. Therefore, even if the example of self‑defence is similar to, or even the same as the prosecution case, that could not affect the jury’s decision because the contrasting defence case was put very clearly.
There is no argument that the trial judge did not correctly set out the law in relation to self-defence, including the fact that the onus of proof lay upon the prosecution to negate self-defence. As I have said, she clearly put the defence case, and the fact that the example she gave might lead the jury to believe that if the prosecution case was proved beyond reasonable doubt then self-defence would not be available, is hardly controversial.
I would reject that ground of appeal.
Ground 5 – The verdict was against the weight of the evidence.
The forensic pathologist Dr Gilbert said in his evidence (transcript, p 181) that:
One couldn’t exclude the possibility that the loss of control of the deceased, when he is in the semi-upright position and striking the left-hand side of the head, could have caused the fracture, although it’s far more likely that it resulted from a more substantial fall.
Ms Powell argues that it follows that the prosecution did not eliminate as a reasonable possibility that the fracture of the skull which eventually caused death was due to the actions of a third party. Therefore it is said that the prosecution had failed to prove beyond reasonable doubt that the act of the appellant caused the death of the deceased.
In my view, that argument cannot be sustained. Although the jury would be guided by Dr Gilbert’s opinion, the decision as to whether the blow to the head by the appellant caused the deceased to be knocked to the ground and as a result suffer a fractured skull was a matter for the jury. There was ample evidence from which the jury could be so satisfied beyond reasonable doubt. The passage relied upon by the appellant is only one part of that evidence. The jury were able to form their own view, having heard the evidence and seen the video.
I would reject that ground of appeal.
Conclusion
For the reasons given, leave to appeal should be refused and the appeal should be dismissed.