R v Matthew Raymond Nicholls
[2010] ACTSC 25
•1 April 2010
R v MATTHEW RAYMOND NICHOLLS
[2010] ACTSC 25 (1 April 2010)
CRIMINAL LAW – common assault – assault occasioning actual bodily harm – assaults caused by deliberate shoulder charge – verdict of guilty could be supported on the evidence – mental impairment of the accused – symptoms of psychosis and chronic schizophrenia – impaired capacity to reason about the matter of wrongfulness – lack of criminal responsibility – not guilty by reason of mental impairment
CRIMINAL LAW – manslaughter by unlawful act – causation – deliberate shoulder charge resulting in a fall and a collision with a bike rack – victim suffered two fractured ribs – victim collapsed 45 minutes later and died – whether fall directly or indirectly responsible for victim’s death – fall significantly contributed to victim’s death
CRIMINAL LAW – manslaughter by unlawful act – deliberate shoulder charge resulting in a fall and a collision with a bike rack – death resulting unexpectedly from a minor assault – mere fact that death results from an unlawful act is not sufficient to constitute manslaughter – an appreciable risk of serious injury required – reasonable person would not foresee an appreciable risk of serious injury – not guilty of manslaughter
Crimes Act 1900 (ACT), Pt 13, s 324
Criminal Code 2002 (ACT), ss 27
Wilson v R (1992) 174 CLR 31
No. SCC 182 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 April 2010
IN THE SUPREME COURT OF THE )
) No. SCC 182 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
MATTHEW RAYMOND NICHOLLS
ORDER
Judge: Higgins CJ
Date: 1 April 2010
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty by reason of mental impairment be entered for count 1
A verdict of not guilty by reason of mental impairment be entered for count 2
A verdict of not guilty be entered for count 3
The accused was, on 7 December 2009, presented for trial upon an indictment containing three counts alleging that on 23 August 2007 at Canberra he:
...assaulted Brett Farquharson
AND ... assaulted Jacoba van der Voorden and occasioned to her actual bodily harm
AND ... unlawfully caused the death of Jacoba van der Voorden.
The evidence revealed that about 11:20am, the accused walked though the Canberra Centre, Canberra City, on the ground floor from between Bunda Street towards Bullumbir Street towards the Eastern continuation of Ainslie Avenue. He passed Mr Farquharson. As he did so he appeared to ‘shoulder-charge’ Mr Farquharson colliding with his upper body on the right hand side and pushing him backwards and to the side. He said “sorry” but in tones Mr Farquharson found unconvincing. Having viewed the surveillance tape I agree with Mr Farquharson’s impression.
The accused progressed towards the exit leading to Ainslie Avenue, to the East of the Centre.
At that time Mrs van der Voorden was walking towards the Centre, travelling West. As the two approached each other the accused deviated and shoulder-charged Mrs van der Voorden. The impact knocked Mrs van der Voorden off-balance. Her upper body collided with a bicycle rack.
The accused yelled at her “I told you to get out of the way” and continued towards Ainslie Avenue.
Again the actions of the accused, as shown by surveillance footage, are consistent only with a deliberate collision between himself and Mrs van der Voorden. It does not appear to be accidental whether in the sense of being inadvertent or in consequence of a warning for Mrs van der Voorden to get out of the way. He deviated towards her before striking her.
The impact with the bicycle rack, I am satisfied caused a fracture to the 8th and 9th ribs in the area of the lower back of Mrs van der Voorden.
Ordinarily, that event would not be expected to have fatal consequences. However, in this case it did. After proceeding without apparent difficulty, about 45 minutes later, Mrs van der Voorden was overcome by breathlessness and collapsed. An ambulance was called immediately and arrived soon after. A well qualified passer-by rendered assistance with cardio-pulmonary resuscitation. Ambulance officers arrived and took over. Their efforts were, unfortunately, unsuccessful.
The reason for this appeared from the autopsy report. The immediate cause of death was the leakage of blood into the sac surrounding the heart from a tear in the aorta, the major artery taking blood from the heart. This resulted over time in a compression of the heart itself until it could not beat. That condition is called tamponade. It is not a condition that can respond to cardio pulmonary resuscitation as the stoppage of the heart is due not to blockage or diminution of input but to a stoppage of the heart beating response.
How then was the leakage caused? There was a tear in the body of the aorta itself whereby the inner lining separated from the outer lining. That separation or dissection spread down to the bifurcation in the lower abdomen of the aortic artery. The pressure of the leaked blood resulted then in a tear near the heart within the pericardium. The heart was thereafter squeezed until it became immobile. Death resulted from the failure of the circulating system.
The autopsy report opines that the initial dissection could have resulted directly from the impact between the deceased and the bicycle rack and then the ground after she was pushed off balance by the accused.
It is also possible the dissection was started by a hypotensive (or high blood pressure) surge caused by the distress of the assault or indeed the pain of the fractured 8th and 9th ribs.
In oral evidence at committal the pathologist, Dr Noel Woodford, seemed to favour the latter possibility as opposed to the former. Mr Archer put to him the following:
Now in relation to a number of hypotheses, I want to put a couple of them to you and invite some expressions of opinion from you. That Mrs van der Voorden – I’ll put this to you as a proposition – had a small undiagnosed, or perhaps diagnosed because it happened that morning or soon beforehand, had a small aortic tear or perforation, and that that perforation was made worse by either the trauma itself or what you described as a hypertensive surge afterwards. Is that a scenario that’s open on the evidence available to you?
... I think just taking the facts as you say them, yes it’s possible.
Dr Woodford made it clear that, whilst the impact with the bike rack could have directly caused the aortic tear and, hence, the death of Mrs van der Voorden, it was a reasonable hypothesis that the condition pre-existed that fall and that the tear was triggered by an emotional surge raising her blood pressure, triggered by the experience of being pushed off balance by the accused.
I have no doubt that the fall caused by the accused was a significant factor in causing Mrs van der Voorden’s death. Favourably to the accused it may be accepted that the death was an entirely unexpected consequence of the accused’s actions. Nevertheless, I also have no doubt that the action of the accused in violently shoving Mrs van der Voorden out of his way was an assault. It was a deliberate act performed with the intent of applying force to Mrs van der Voorden. There was no legal justification or excuse. That harm, at least indirectly, led to Mrs van der Voorden’s death.
The next question is whether, subject to the issue raised concerning the accused’s mental impairment, that conduct on his part would amount to any and, if so, which, of the criminal offences charged.
I have found that the actions of the accused amounted to an assault. That assault occasioned actual bodily harm. That would suffice to satisfy count 2 of the indictment. That, however, is an alternative to count 3, manslaughter.
The actus reas of that offence may be an assault. However, more is required for that act to constitute manslaughter.
The High Court addressed that issue in Wilson v R (1992) 174 CLR 313. The accused had punched the deceased. The latter fell striking his head upon the ground. That caused brain damage from which the accused died. It was accepted that the accused did not intend death or grievous bodily harm. The trial judge directed the jury that the assault could support a verdict of manslaughter if the assault was considered “serious” and “a dangerous act”.
In their joint judgment Mason CJ, Toohey, Gaudron and McHugh JJ, their Honours reviewed the place of “battery manslaughter”. Although originally killing a person in the course of an unlawful act was capable of being a criminal homicide, that, their Honours considered, did not represent the current law. The issue was the state of awareness if any of the consequences and what level of risk needed to accompany an unlawful and dangerous act causing death to constitute manslaughter.
Their Honours, at 333, concluded:
It is better to speak of an unlawful and dangerous act carrying with it an appreciable risk of serious injury. A direction in those terms gives adequate recognition of the seriousness of manslaughter and to respect for human life, while preserving a clear distinction from murder.
That category of manslaughter also must be distinguished from manslaughter by criminal negligence.
In the case of manslaughter by criminal negligence it is unnecessary to prove that the accused’s act was unlawful. And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act.
It followed, in their Honour’s view that at [334]:
Cases of death resulting unexpectedly from a comparatively minor assault, which would also have fallen within battery manslaughter will be covered by the law as to assault. A conviction for manslaughter in such a situation does not reflect the principle that there should be a close correlation between moral culpability and legal responsibility, and is therefore inappropriate.
The court agreed, though Brennan, Deane and Dawson JJ dissented as to the result, that the mere fact that death results from an unlawful assault does not suffice to mandate conviction for manslaughter.
There are thus two questions to be addressed in the present case. The first is whether the accused has committed an unlawful act. That is satisfied in this case by the finding I made that the accused unlawfully assaulted Mrs Van der Voorden. The second is whether that act was of such a character that, in all the circumstances, a reasonable person in the position of the accused would have realized that he (or she) was exposing Mrs Van der Voorden to an appreciable risk of serious injury.
In my view that test is not met. Such a person would appreciate a risk of some injury. They would not expect serious harm to be suffered.
Thus the evidence supports a finding of guilt of assault occasioning actual bodily harm but not manslaughter. I so find.
As to the charge of assault upon Mr Farquharson, that was a deliberate act of shoving him aside. It was not an accident. There was no legal justification for it. A verdict of guilt on a charge of assault would be supported on the evidence.
That, of course, does not conclude the matter. An issue is raised not only by defence counsel but also by counsel for the Crown, concerning the mental impairment of the accused.
The issue is addressed by Part 13 of the Crimes Act 1900 (ACT). The definition of mental impairment and its significance is provided for by s 27 of the Criminal Code 2002 (ACT).
That is:
(1) In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2) In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
The consequence of mental impairment is provided for in s 28:
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong; or
(c) the person could not control the conduct.
(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of fact.
(4) A person is presumed not to have been suffering from a mental impairment.
(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6) The prosecution may rely on this section only if the court gives leave.
(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b) for any other offence—find the person not guilty of the offence because of mental impairment.
On 19 September 2009, Dr Stephen Allnutt examined the accused. He is a well qualified forensic psychiatrist. Dr Allnutt diagnosed the accused as suffering schizophrenia. At the time of the offences, it was Dr Allnutt’s opinion that the accused was “probably suffering symptoms of psychosis in the form of delusional beliefs, perceptual disturbance and, in my view, probably thought disorder in particular poverty of thought”.
The effect of that consideration on the accused’s capacity to know the nature and quality of his conduct, or that it was wrong or his capacity to control it, Dr Allnutt acknowledges was “difficult” to determine with certainty.
Nevertheless, he concluded that it was “unlikely” that the mental impairment permitted the accused not to be aware of the nature and quality of his acts or to control his conduct. However, he continued,
“I believe there are grounds to consider that the mental impairment had the effect that it caused him not to know the conduct was wrong in that there was evidence that he was experiencing a thought disorder, auditory hallucinations, religious and grandiose delusions which could have impaired his capacity to reason about the matter of wrongfulness with a moderate degree of sense and composure in the manner of an ordinary person”.
A second psychiatrist, Dr Olav Nielssen, agreed that the accused suffered from mental impairment by reason of chronic schizophrenia exacerbated by substance abuse. He concluded that, at the time of the offending behaviour
“...his mental impairment had the effect of depriving him of the ability to reason with a moderate degree of sense or composure about the likely consequences of his actions, or recognize that his actions were wrong.
Dr Nielsson also considered that there was “evidence” that “at the time of the offence Mr Nicholls was unable to control his actions because they were prompted by symptoms of mental illness.”
The Crown does not disagree with the proposition that, at the time of the alleged offences, the accused lacked criminal responsibility for his offending behaviour by reason of mental impairment.
I respectfully agree with that concession and I find accordingly that:
1. In respect of count 1 there be a verdict of not guilty by reason of mental impairment.
2. In respect of count 2 there be a verdict of not guilty by reason of mental impairment.
3. In respect of count 3 there be a verdict of not guilty.
I will hear counsel in respect of the application of s 324 of the Crimes Act 1900 to the accused. That provides:
(1) If an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court shall order that the accused be detained in custody until the ACAT orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.
(2)If the Supreme Court is satisfied under subsection (1), it shall make an order accordingly.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 1 April 2010
Counsel for the Crown: Mr J Lawton
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 7th and 9th December 2009
Date of judgment: 1 April 2010