R v McCarthy
[2015] SASCFC 177
•30 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCCARTHY
[2015] SASCFC 177
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
30 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY - WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - CAUSATION
Appeal against conviction of murder.
In the early hours of the morning of 8 June 2012 the appellant was socialising with a group of people including his niece BM and NS. They returned to a house where the appellant was said to have gone to sleep. BM and NS went back out to buy methylamphetamine from the deceased and returned with him to pay him with money left in the house. There was evidence: that when they arrived back at the house, the deceased was under the influence of methylamphetamine and groped NS, pulled BM’s hair and threw her against the car; that NS screamed and ran up the stairs, passing the appellant on the way up; that the appellant and the deceased began fighting and the deceased was yelling. A neighbour called 000 at 4:10am.
BM and NS gave evidence that they saw the appellant put a cloth or an item of clothing in the deceased’s mouth to stop him from breathing. There was substantial forensic evidence connecting the appellant with a blood-stained wooden baton which in turn was connected with injuries suffered by the deceased. The appellant’s jacket was heavily stained with the deceased’s blood from more than one impact and efforts had been made to clean up the scene before police arrived. The appellant admitted to burying the deceased’s body in Kuitpo Forest, where it was found the following day. A forensic pathologist diagnosed the cause of death as blunt force trauma to the head along with the presence of methylamphetamine, but said it would be unreasonable to attribute the cause of death just to the methylamphetamine.
The prosecution case was that the accused inflicted multiple forceful blows (the striking case) followed shortly thereafter by a final act of asphyxiation (the asphyxiation case) upon the deceased. The appellant gave to police a version denying any application of force by himself upon the deceased, and gave no evidence at trial. The defence at trial was that the prosecution did not prove the requisite causation or intention nor negate several forms of defence. Defence counsel and the prosecutor agreed that provocation manslaughter need not be left to the jury and the Judge did not do so.
On appeal, the appellant contended that the Judge erred in not directing as to provocation manslaughter; that the prosecution case as to asphyxiation and/or striking rendered the charge bad for duplicity; that the Judge erred in failing to direct the jury as to the need for unanimity in relation to the actus reus; that the Judge failed to adequately direct the jury on causation having regard to the concentration of methylamphetamine in the deceased’s blood at the time of death and the contention that he could still have been alive when he was taken away from the house; that the Judge’s directions as to the interaction between the appellant’s level of intoxication and the specific intent for murder were inadequate; that directions as to self defence were inadequate; and that the verdict was unreasonable.
Discussion of extended jury unanimity and alternate bases of liability.
Held per Peek J (allowing the appeal) (Kourakis CJ agreeing):
1. Provocation manslaughter arose on the evidence and the line of authority including Pemble v The Queen required that it be left to the jury irrespective of the wishes of counsel. The jury might not unreasonably have considered that the prosecution did not exclude the possibility that the appellant heard screams, arrived in the garage, observed the deceased in the process of assaulting his niece, and may have believed that a stranger/trespasser was attempting to rape her. The Judge erred in failing to leave provocation manslaughter to the jury, notwithstanding counsel’s wishes.
2. The directions as to causation, specific intent and self defence were adequate.
3. Having regard to all of the evidence and circumstances, it is not demonstrated that the verdict was unreasonable.
4. The conviction is set aside and a retrial ordered.
Per Kourakis CJ:
5. The correct test for determining if an extended unanimity direction must be given is to determine whether the alternative bases are mutually destructive. It is not necessary to decide if that was required in these circumstances.
Per Peek J:
6. The count was not bad for patent duplicity, and the conviction was not bad for uncertainty as there was only one completed offence of murder or manslaughter. Extended jury unanimity was not required. The striking case and the asphyxiation case were separated in time by only minutes and in space by only metres; they were not mutually exclusive as causative of death; there was a case to answer on the striking case and an independent case to answer on the asphyxiation case; the prosecution case did not suffer from mutually destructive scenarios; and the prosecution did not cause prejudice to the appellant by changing position during the case.
Per Gray J (dismissing the appeal):
7. The defendant’s case was that he became involved to defend his niece and then to defend himself. This would suggest that he was responding rationally to a threatening situation and so was not without self-control. The Judge did not err by accepting defence counsel’s submission that provocation should not be left to the jury. In all of the circumstances there was insufficient evidence to suggest that provocation might be a real issue for the jury.
8. The jury were adequately directed on the various self defence provisions under the Criminal Law Consolidation Act 1935 (SA).
9. The prosecution presented a case of a continuous assault resulting in the death of the deceased. There was no latent duplicity, ambiguity, uncertainty or inconsistency in the prosecution’s case. The relevant essential element or ingredient to the charge of murder is that the defendant applied force unlawfully to the deceased. The jury only need be in unanimous agreement that it was an act of the defendant in the course of the assault on the deceased that was the substantial cause of death. The prosecution has never been required to elect which particular injury or instance of force in a continuous assault resulted in death.
10. There were no unusual circumstances that would warrant the Judge making a direction as to the impact of intoxication on the defendant’s state of mind absent a request from either counsel. Intention was not a real issue in the case.
11. There was no omission of the Judge as to the defence case that would give rise to a miscarriage of justice.
Criminal Law Consolidation Act 1935 ss 11, 15, 15(1)(a), 15(1)(b), 15A, 15C, 15C(2)(a), 15C(3), 168, 241(1), 269, referred to.
Ahsin v The Queen [2014] NZSC 153; R v Beach (1994) 75 A Crim R 447; R v Bellman [1989] AC 836; R v Boreman [2000] 2 Cr App R 17; R v Brown (1984) 79 Cr App R 115; Campbell v The Queen [1981] WAR 286; Cheung v The Queen (2001) 209 CLR 1; R v Clarke and Johnstone (1986) 21 A Crim R 135; R v Cramp (1999) 110 A Crim R 198; R v Dally (2000) 115 A Crim R 582; R v Giannetto [1997] 1 Cr App R 1; James v The Queen (2014) 253 CLR 475; KBT v The Queen (1997) 191 CLR 417; King v The Queen (1986) 161 CLR 423; R v Klamo (2008) 18 VR 644; R v Leivers and Ballinger [1999] 1 Qd R 649; Masciantonio v The Queen (1995) 183 CLR 58; R v Moffatt (2000) 112 A Crim R 201; Parker v Sutherland (1917) 86 LJKB 1052; Pemble v The Queen (1971) 124 CLR 107; R v Perks (1986) 41 SASR 335; The Queen v PL (2009) 261 ALR 365; The Queen v R (1981) 28 SASR 321; Royall v The Queen (1991) 172 CLR 378; R v Serratore (1999) 48 NSWLR 101; R v Spathis; R v Patsalis [2001] NSWCCA 476; R v Staker (2011) 110 SASR 274; R v Swindall and Osborne (1846) 3 Car & Kir 230; 175 ER 95; R v Thatcher [1987] 1 SCR 652; R v Thomson; R v Dann (2002) 134 A Crim R 252; Van Den Hoek v The Queen (1986) 161 CLR 158; Varley v The Queen (1976) 51 ALJR 243; 12 ALR 347; R v Walsh (2002) 131 A Crim R 299; WGC v The Queen (2007) 233 CLR 66; R v White (1988) 41 A Crim R 237; R v Zampogna (2003) 85 SASR 56, discussed.
Alford v Magee (1952) 85 CLR 437; Arulthilakan v The Queen (2003) 203 ALR 259; Bui v The Queen; Hargrave v The Queen (2011) 215 A Crim R 93; R v BMA (2007) 99 SASR 384; R v Carbone (No 2) (1976) 14 SASR 280; R v Carr [2000] 2 Cr App R 149; R v Chignell [1991] 2 NZLR 257; Domican v The Queen (1992) 173 CLR 555; Edwards v The Queen (1993) 178 CLR 193; El-Waly v The Queen [2012] VSCA 184; R v Fragomeli [2008] SASC 96; R v Frederick [2004] SASC 404; R v Gaughan [1990] Crim LR 880; Giorgianni v The Queen (1985) 156 CLR 473; R v Glattback [2004] QCA 356; R v Hallett [1969] SASR 141; R v Inston (2009) 103 SASR 265; Johnson v Miller (1937) 59 CLR 467; Jones v The Queen [1980] WAR 203; R v Kerin (2013) 116 SASR 316; R v King (1985) 17 A Crim R 184; R v Lapthorne [1990] WAR 207; R v Lindsay (2014) 119 SASR 320; Lindsay v The Queen (2015) 89 ALJR 518; R v McCarthy [2015] SASC 11; M v The Queen (1994) 181 CLR 487; R v Maharaj (1995) 85 A Crim R 374; Nudd v The Queen (2006) 80 ALJR 614; Parker v The Queen (1963) 111 CLR 610; Patel v The Queen (2012) 247 CLR 531; Pollock v The Queen (2010) 242 CLR 233; R v Power (1996) 87 A Crim R 406; R v Price [1991] Crim LR 465; R v Ryder [1995] 2 NZLR 271; S v The Queen (1989) 168 CLR 266; R v Serratore [2001] NSWCCA 123; R v Sherratt [2013] QCA 78; Stingel v The Queen (1990) 171 CLR 312; R v Suckling (1998) 104 A Crim R 59; R v Trotter (1982) 7 A Crim R 8; Tsang Ping-nam v The Queen [1981] 1 WLR 1462; R v Webb (1977) 16 SASR 309; R v Willers (1995) 125 FLR 221, considered.
R v MCCARTHY
[2015] SASCFC 177Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ
KOURAKIS CJ: I would allow the appeal on ground 3 and set aside the conviction and remit the matter for trial for the reasons given by Peek J. I also join in the disposition of grounds 4 to 13 proposed by his Honour and agree with his reasons.
On grounds 1 and 2, the reasons of Peek J comprehensively organise and usefully analyse the sometimes disparate Australian and international authorities on the issue of extended jury unanimity. I make the following observations on that issue.
First, it is not obvious to me that the taxonomy which has emerged from the authorities, of alternate party, factual and legal bases of liability is particularly helpful. All truly alternative bases for liability will depend on different factual matrices which have, or may have, different legal consequences.
Secondly, I am, like Peek J, concerned about the inherent uncertainty in the concept of “materially different issues or consequences”. Moreover, issues may be materially different and have contradictory consequences even when they are not separated greatly in “time, place or nature”.
It is the cardinal principle of Australian criminal law that a charged offence must be proved to the satisfaction beyond reasonable doubt of the tribunal of fact. In my respectful opinion, the test which is most consistent with that principle is to ask - are the alternative bases mutually destructive? The extended jury unanimity issue arises because juries are multi-member tribunals of fact. The principle of logic which has spawned the concept of extended jury unanimity is essentially that a jury, as an institution, cannot be satisfied of guilt beyond reasonable doubt if some of its members, or some of the statutorily prescribed majority of its members, find the offence proved on a factual basis which precludes them from assenting to a verdict on the factual basis found by the remaining members of the jury.
Alternate party liability cases are unlikely to raise a unanimity issue because the ultimate question is – has the prosecution proved beyond reasonable doubt that the accused was criminally complicit in the offence. When the alleged alternatives are that an accused was either the perpetrator, or criminally complicit with the perpetrator, a finding on the latter basis will almost always be founded on the acceptance of a common body of evidence which also supports the former finding. The example given by Peek J in [242]-[245] is one in which both sets of jurors must have accepted a common body of evidence, not expressly mentioned in the example given, perhaps evidence of motive or other admissions of a more general nature, on which the accused’s criminal complicity in the murder could be found. The points of difference between the jury on the example given by Peek J are that the six jurors who are satisfied that the husband procured the murder are not prepared to go as far as to find him to be the perpetrator on the disputed forensic evidence, and that the six jurors who find the accused to be the perpetrator accepted the inculpatory part of the gaol admission and rejected the alibi evidence. Importantly, on that example, and in the generality of such cases, any six jurors who would go so far as to find the accused the perpetrator would necessarily also be satisfied that the accused was an accomplice absent the additional but disputed evidence placing the accused at the scene. In short, the jurors who would find the accused to be the perpetrator would not be precluded from joining in a verdict based on accessorial liability merely because they were prepared to go further.
The dishonesty cases in which multiple misrepresentations are left to the jury, which raise the extended jury unanimity issue, are necessarily cases in which there is no latent duplicity in the charge. On that premise a requirement for unanimity on at least one of the misrepresentations would seem to be directly supported by the reasoning in KBT v The Queen.[1]
[1] (1997) 191 CLR 417 at 422-423.
Cases of manslaughter put on the alternative legal basis of gross negligence or unlawful and dangerous act will depend on their particular facts. In cases in which the same act is relied on and there is no realistic basis for different conclusions on the issues of gross negligence and dangerousness, it will not matter that some jurors are not satisfied of the illegality of the conduct. However, if there is a basis on which different conclusions might be reached, as I think there was in R v Cramp,[2] I doubt that the fact that the substratum of fact is common to both issues means that a direction on jury unanimity is not required. To that extent I respectfully differ with the analysis of Barr J in R v Cramp.[3]However, on the facts in R v Cramp, the primary prosecution case, which comprised evidence that the defendant incited the driver who was killed to drive at dangerously excessive and unlawful speeds, would if accepted, have established manslaughter on both basis. The secondary case was one of gross negligence in allowing the driver to drive without a seatbelt. The secondary case was one which did not involve any unlawfulness. However, the secondary case, as Barr J observed, could not have resulted in a verdict of guilty of manslaughter unless the primary case was accepted.
[2] (1999) 110 A Crim R 198.
[3] (1999) 110 A Crim R 198 at [65]-[68].
In cases in which the alternative bases for manslaughter are provocation on the one hand, and unlawful and dangerous act on the other, no difficulty will generally arise. Jurors who are satisfied that the accused committed the acts causing death with an intention, at least, to cause grievous bodily harm, but accept that he was possibly provoked to do so, must almost always be satisfied that the accused committed an unlawful and dangerous act causing death.[4]
[4] See R v Dally (2000) 115 A Crim R 582.
The application of these principles to the facts of this case is problematic. It is not necessary to reach a concluded view because there must be a retrial for other reasons. On that retrial whether or not it will be necessary to give an extended unanimity direction will depend on the way the prosecution and defence cases are presented and on the real forensic issues which arise.
GRAY J.
This is an appeal against conviction.
Patrick Francis McCarthy, the defendant and appellant, was charged with the murder of Michael Varehov at Beaumont, South Australia on 8 June 2012.[5] Following a trial before Judge and jury, a verdict of guilty of murder was returned.
[5] Criminal Law Consolidation Act 1935 (SA) section 11.
It was the prosecution case that the defendant assaulted the deceased, causing injuries that led to his death. The prosecution claimed that the defendant then buried the body with the assistance of Bradley Eric Fowler, who was tried on the charge of assisting an offender and acquitted.[6] Two other female defendants, BM and NS, pleaded guilty prior to trial to the offence of assisting an offender.
[6] Criminal Law Consolidation Act 1935 (SA) section 241(1).
The defendant has appealed against the conviction. The grounds of appeal primarily relate to alleged omissions and deficiencies in the Judge’s summing up. The defendant also claims that the Judge should have exercised his discretion to exclude evidence and that the conviction was unreasonable and not supported by the evidence.
Background
BM and NS had been friends since childhood and were living together in Melbourne in June 2012. They were visiting Adelaide on the night of the deceased’s death. The defendant is the uncle of BM. NS has known the defendant since she was a child, as her family lived next door.
In the early afternoon of 7 June 2012, BM and her mother met the defendant and his friend, David Ford, at the Elephant & Castle Hotel in the Adelaide CBD. The group later proceeded to the Bath Hotel in Norwood.
At 5.10 pm, NS arrived in Adelaide from Melbourne. NS’s ex-boyfriend, Shane Thomas, collected her from the airport and they went to the home of one of Mr Thomas’ associates, Eddie Grace. Mr Thomas owed Mr Grace money for methylamphetamine. While at Mr Grace’s home, NS was introduced to the deceased.
Mr Thomas drove NS to the Bath Hotel at about 9.30 pm. NS asked Mr Thomas if he had any methylamphetamine. Mr Thomas said that he did not but agreed to ask the deceased if he had any. Mr Thomas had arranged to meet the deceased at the hotel when dropping off NS. After speaking with the deceased in the car park of the Bath Hotel, Mr Thomas informed NS that the deceased would catch up with NS later that evening and supply methylamphetamine.
The defendant, Mr Ford, BM, BM’s mother and NS remained at the Bath Hotel until about 10.50 pm. The group then went to Strats Nightclub on Hindley Street in the Adelaide CBD. While at Strats Nightclub, NS was in contact with the deceased and arranged to meet him later to collect the methylamphetamine. At about 1.45 am on 8 June 2012, the defendant, BM and NS left the nightclub and caught a taxi to the Bath Hotel to collect the defendant’s car. From there, the defendant drove BM and NS to a property NS was renting in Beaumont. BM and NS gave evidence that they did not want the defendant to know that they were attempting to purchase drugs as they thought he would not approve. However, they needed the defendant’s car in order to meet the deceased. BM and NS persuaded the defendant to sleep at the Beaumont property.
The only other resident of the Beaumont property was Rebekah Cross, who was home in bed that evening. Upon arriving at the property, NS telephoned Ms Cross to ask her to let them into the house. Ms Cross let NS in through the front door, which was located on the first floor. The ground floor of the property was the garage. Ms Cross went downstairs, using internal stairs, and opened the roller door on the left hand side of the driveway. NS told the defendant to go upstairs from the garage and sleep on the lounge on the first floor.
BM and NS then took the defendant’s car and met the deceased at about 3.20 am on 8 June 2012 near the end of the South Eastern Freeway at Mount Osmond. NS got into the deceased’s vehicle and the deceased gave her a small container of methylamphetamine. The deceased demanded $500.00. NS did not have that amount of money with her. She believed Mr Thomas had already taken care of payment. The deceased said that he would drive NS back to the Beaumont property so that she could get the money. NS asked BM to come in the deceased’s vehicle with her. The deceased drove BM and NS to the Beaumont property. BM and NS gave evidence that the deceased was agitated and appeared to be under the influence of drugs. Both BM and NS deposed that they felt uncomfortable during the drive as the deceased was staring at BM in the rear vision mirror. Evidence was led at trial that, at the time of his death, the deceased had methylamphetamine in his body.
The deceased parked on the right hand side of the driveway at the Beaumont property. The roller door on the left hand side of the garage was still open. NS told the deceased that she would go and get the money and told him to stay in the vehicle. However, when NS got out of the vehicle, the deceased followed her into the garage. The deceased then grabbed NS’s bottom, pressed himself against her and started groping her breasts over her clothing. BM deposed that she heard NS scream, got out of the vehicle and went into the garage. When BM saw the deceased and NS, she screamed and NS gave evidence that BM told the deceased to get off NS. BM gave evidence that she tried to pull the deceased off NS. The deceased grabbed BM’s ponytail. The deceased threw BM against Ms Cross’ vehicle and started groping her breasts and bottom over her clothing. BM gave evidence that she screamed for the defendant. NS, once free, ran up the internal stairs, passing the defendant on the way, and into Ms Cross’ bedroom.
BM gave evidence that the defendant came into the garage and pulled or pushed the deceased off her. BM then ran from the garage and upstairs to join NS and Ms Cross.
It was the prosecution case that the defendant then used a wooden baton to strike the deceased at least 15 times to the head and finally used a piece of cloth to asphyxiate the deceased.
NS gave evidence that from Ms Cross’ bedroom she could hear screams and the sound of fighting. She heard the sound of breaking glass. NS deposed that the screams sounded deep, as though someone was being hurt, and they continued for a period of time. BM gave evidence of hearing yelling, clanging and banging noises coming from the garage. Ms Cross gave evidence that she was woken by an altercation that continued for a few minutes. She heard grunts and thudding noises, which sounded as though someone was being hit.
Ms Cross was scared and told BM and NS that she wanted to leave. BM recalled seeing the deceased’s car keys land on the garage floor during his earlier struggle with her. She went downstairs to the garage to retrieve the keys. When in the garage, BM saw the defendant and the deceased and the two were “fighting, like people wrestling.” The defendant was on top of the deceased, overpowering, punching and fighting him. The deceased was just yelling. BM returned upstairs and gave the car keys to Ms Cross, who left by the front door and drove away in the deceased’s vehicle.
BM gave evidence that, a short time later, the defendant called BM and NS to “get the fuck down here”. The defendant was angry. The deceased was on the floor in the vacant space where the second vehicle would usually be parked. BM deposed that the deceased was making noises, either gurgling or trying to talk. It sounded as though he could have been having difficulty breathing. BM observed the defendant place a piece of cloth or clothing into the deceased’s mouth and then cover the deceased’s mouth with his hand for about 20 to 30 seconds. BM said she observed the defendant pinching the deceased’s nose at the same time as he covered the deceased’s mouth. BM said that the deceased was moving at the start but eventually stopped moving.
NS gave evidence that the defendant sounded angry when he called BM and NS into the garage. She could see a puddle of blood on the ground near the vehicle. She saw the defendant get a t-shirt or clothing from a chest of drawers. NS said that she walked toward the rear of the vehicle and then saw the deceased on the ground behind the vehicle. She saw the defendant kneel over the deceased and shove the fabric item into his mouth, and then put a hand over the deceased’s mouth for at least 20 to 30 seconds. While covering the deceased’s mouth, the defendant told NS to get a blanket. NS went to a small room adjacent to the garage, obtained a blanket and gave it to the defendant. The defendant still had his hand over the deceased’s mouth when she walked away. In cross-examination, NS said that the first thing that crossed her mind when she saw the defendant with the cloth was that he was getting it to stop the deceased’s bleeding.
BM and NS both gave evidence that they believed the defendant put the deceased into the boot of Ms Cross’ vehicle, either on top of the blanket or wrapped in the blanket. The defendant yelled at them to get in the vehicle and leave. BM opened the roller door to the garage and NS reversed out. NS drove to a nearby street, where BM and NS left the vehicle with the deceased in the boot. BM and NS both deposed that they believed the deceased was dead at that time.
Four neighbours gave evidence as to being woken by noises coming from the Beaumont property in the early hours of the morning of 8 June 2012. The neighbour across the road, JF, deposed that he was woken at about 3.40 am. He heard, over the course of about 15 to 20 minutes, deep-seated screams that sounded similar to a “guttural animal-like scream”, hitting sounds and breaking glass. Later he heard voices, including a calm female voice, coming from the garage. JF deposed that he saw two vehicles drive off, one was driven by a female who exited the front door of the property and the other was reversed out of the garage. He then called the police. The police attended at about 4.35 am. The conversations between the defendant and the police are discussed later in these reasons.
RB, who lived next door to the Beaumont property, said that, at about 3.30 am, she was awoken by the sound of breaking glass. She said that she heard thumping noises, which continued for about 15 minutes, and later heard the sound of the hot water service for that property being turned on and off, which continued for up to an hour.
JM and KW lived in the adjoining townhouse to the Beaumont property. JM deposed to hearing loud voices, yelling, screaming, moaning, groaning and thumping noises sometime after 2.00 am. JM said that after about ten minutes those noises stopped and, about ten minutes later, she heard somebody walk quickly down the stairs in the adjoining house. She then heard a vehicle drive off and then some time later, the sound of the roller door and another vehicle driving off. KW gave evidence that he was woken by JM at about 3.30 am. He heard muffled emotional voices and reasonably loud moaning and groaning noises. KW went back to sleep but was woken by the sound of people going down the internal staircase of the house next door and, later, by JM when the roller door was opened. KW went to the bedroom window and saw a vehicle being reversed out of the garage. He also deposed that he saw another vehicle in the driveway at some point prior to the second vehicle leaving the garage.
It was the prosecution case that BM and NS met up with Mr Thomas later that morning and that he checked them into the Arkaba Court Motel. Mr Thomas left the hotel and returned some time later with the co-accused, Mr Fowler. NS gave the car keys to either Mr Thomas or Mr Fowler and said that the keys needed to be given to the defendant. At some point she had told Mr Thomas the rough location of the vehicle.
It was an agreed fact that the defendant buried the deceased at Kuitpo Forest later on 8 June 2012. On the prosecution case, Mr Fowler assisted the defendant to bury the body but, as noted earlier, he was acquitted of that charge.
There was medical evidence that the deceased had received at least 15 blows to the head resulting in approximately 18 major injuries or clusters of injuries. The majority of the injuries were consistent with being struck by a wooden baton. He also had bruising to his chest, back, waist and legs, a fractured rib, abrasions on his nose and forehead, and a black eye. The deceased had a number of defensive injuries to his hands and arms including lacerations, fractures and bruising consistent with being struck with a linear shaped object, such as a baton. The deceased had no injuries to his knuckles consistent with punching.
There were no fractures to the deceased’s skull. Forensic pathologist, Dr Charlwood, said that she would not necessarily expect to see fractures if a person had been hit repeatedly to the head with a wooden baton because of the elastic properties of the skull. She said a strike to the head is less likely to cause a fracture if the head is moving and not fixed. On a macroscopic examination of the deceased’s brain, it was observed that the deceased had mild swelling and a minor subarachnoid haemorrhage. There were no large areas of haemorrhage. However, there was a thin film of haemorrhage on the superior roof of the lateral ventricles of the deceased’s brain. Dr Charlwood explained that although it was a minor haemorrhage, it was a within a deep area of the brain, which is a sign of a significant brain injury. Such an injury was usually associated with a great deal of force being applied. Dr Charlwood explained that it is commonly caused by rotational forces to the brain which causes the movement of different parts of the brain and results in a shearing effect of the tissues. Stretching or tensile damage to the nerve cells, axons and supporting structures of the brain can occur.
Dr Charlwood said that there were many variables that might impact on the degree of force required to cause a particular injury because it is subjective and depends on the movement of the deceased and what was being used to inflict the injury. However, in relation to a number of the injuries to the deceased’s head, Dr Charlwood said that “significant force” would have been required to inflict those injuries. Those injuries were “full thickness”, in that the injury penetrated all the layers of the skin, and significant force would have been required to sheer off the scalp and skin or sheer the tissues from the underlying skull. Dr Charlwood said that usually “a great deal of force” would be required to cause the film of haemorrhage on the superior roof the lateral ventricle of the brain. Dr Koszyca, a pathologist who conducted the macroscopic and a microscopic examination for Dr Charlwood, agreed that bleeding in the ventricles of the brain is usually a marker of “severe force” having been applied to the head. However, Dr Koszyca noted that, in this case, there were no other usual markers of significant brain trauma, such as contusions or major haemorrhage.
Dr Charlwood further noted that “significant force” would also have been required to inflict some of the injuries to the deceased’s hand and arms, and “severe force” to fracture his rib bone. The injuries to the deceased’s torso were relatively minor. In Dr Charlwood’s opinion, “medium force” would have been required to cause the internal haemorrhaging to the tissue beneath the skin of the deceased’s chest.
Medical evidence was led that the deceased most likely died within 35 minutes of receiving the injuries to his head. Dr Charlwood opined that the cause of the deceased’s death was blunt force trauma to the head along with the presence of methylamphetamine. At trial the following exchange occurred:
Q.Absent any other information, what is your opinion as to the cause of Mr Varehov's death.
A.With the information I had, I gave the cause of death as blunt force head injuries with the presence of methylamphetamine. Although the head injuries could account for death, there is the potential that they could be survivable. There is also the potential that the methylamphetamine could be toxic and fatal, but, again, also survivable. The combination, and taking all those circumstances into consideration, that is why both those probable or possible causes have been put into the cause of death. The findings that I had, and also the lack of those secondary changes, particularly in the brain, and also the scalp tissues, allowed me to say there has been a close temporal association of this assault and his death. It was unreasonable of me to give the cause of death as just due to methylamphetamine abuse or toxicity because the likelihood Mr Varehov was alive during that assault, or some part of it, the likelihood of him dying solely due to methylamphetamine abuse at that time is just not reasonable. Whilst it's technically possible that that methylamphetamine level could cause death, at that time, it is unreasonable, and also because of those blunt force head injuries.
Q.It would be one pretty big coincidence.
A.Yes.
Dr Charlwood could not support or refute the suggestion that asphyxiation had occurred. To make such a determination, Dr Charlwood would need to ascertain whether there were signs that the deceased resisted. It was probable, however, that the deceased did not resist at the time he was said to have been smothered as a consequence of the head injuries that he had sustained.
A broken wooden baton was later located at the Beaumont property. The end of the baton was found bloodstained in the garage and the handle was found in a bucket of water along with shards of glass. There was strong support for the defendant and the deceased both being DNA contributors to the bloodstained baton and for the deceased being a contributor to the handle of the baton. The deceased’s blood was also found on the jacket the defendant was said to have been wearing that evening.
Sergeant Hackett, a crime scene examiner, found blood stains in the garage. Some of the blood stains had an upwards trajectory and appeared to emanate from a height of not more than 48 centimetres, indicating that the source of the blood must have been quite close to the ground. Sergeant Hackett gave evidence that some hit the surface with quite some force. The deceased’s broken spectacles, links from his watch and one of his shoes were located in the garage.
The evidence that the defendant was the person who inflicted the injuries on the deceased with the baton was overwhelming. On appeal, counsel for the defendant noted that the fact that the defendant had been in an altercation with the deceased was not an issue in dispute at trial. However, the nature and extent of the altercation was in contention.
The defendant did not give evidence at trial. It was the defence case that the deceased was a trespasser, who was committing a home invasion and had indecently assaulted BM and NS. The defendant assaulted the deceased in the course of defending BM.
During his closing submissions, senior counsel for the defendant put to the jury that the defendant acted for a defensive purpose. The jury were reminded that it was for the prosecution to negate the defence beyond reasonable doubt. It was pointed out to the jury that the defendant could not be expected to weigh precisely the amount of defensive action which might be necessary and that he was not to be judged as though he had the benefit of safety and of making a leisurely consideration of the circumstances. Senior counsel emphasised to the jury that the deceased was on the property as a trespasser and that, even if the prosecution satisfied the jury that the defendant’s conduct was not objectively reasonably proportionate to the threat that the defendant genuinely believed to exist, the defence of self defence was made out if the defence satisfied the jury on the balance of probabilities that the defendant genuinely believed that the deceased was committing, or had committed, a home invasion. As part of this submission, senior counsel for the defendant invited the jury to proceed on the basis that the defendant was not, at the time of the alleged offence, engaged in any criminal conduct and that his mental faculties were not substantially affected by alcohol.
On the defence case, the defendant did not commit the act of asphyxiation. Counsel for the defendant suggested that BM and NS were either lying or mistaken. Counsel pointed to inconsistencies in their evidence and to inconsistencies with crime scene evidence. Counsel noted that both women had given evidence that they were intoxicated, scared and panicking.
Counsel for the defendant also contended that the prosecution had not established beyond reasonable doubt that the blunt force injuries to the head were a substantial cause of death. There were two limbs to this contention. First, that the deceased died due to the high concentration of methylamphetamine in his bloodstream. Dr Charlwood agreed that the level of methylamphetamine present was potentially fatal and could have caused the deceased to suffer a heart attack, especially in circumstances of an altercation, which itself would cause an increase in adrenaline and blood pressure. Dr Charlwood could not exclude that the deceased died from a cardiac arrhythmia.
The second limb of the argument was that the deceased died in the boot of the vehicle, either as a result of suffocation or, alternatively, bleeding to death. Counsel for the defendant suggested that the defendant had told BM and NS to take the deceased to the hospital when putting him in the vehicle. It was said that the act of leaving the deceased in the closed boot of the vehicle on the side of the road broke the chain of causation. Dr Charlwood agreed that the deceased could have bled to death as a result of the blunt force injuries. Dr Charlwood estimated that the deceased could have survived for upwards of an hour without medical intervention. Dr Charlwood also acknowledged that a lack of oxygen could have contributed to the deceased’s death if the deceased was unconscious or semi-conscious.
Preliminary Observations
Before coming to discuss the grounds of appeal, it is convenient to address several preliminary matters.
The Director of Public Prosecutions drew attention to the absence of any complaint at trial about the directions given in respect of all but one of the grounds of appeal advanced by the defendant. That ground concerned the admission of evidence of a conversation between the defendant and the police in the absence of a caution. The Director accepted that with respect to the complaints concerning section 15A of the Criminal Law Consolidation Act 1935 (SA), the topic was raised during the course of the summing up, but emphasised that after discussion, senior counsel for the defendant did not request that any direction be given.
The absence of complaint at trial is of importance in considering whether there is a risk of a miscarriage of justice. The Court’s attention was drawn to the following observation of Bray CJ in Carbone (No 2):[7]
[7] R v Carbone (No 2) (1976) 14 SASR 280, 287-8.
The rule [that a matter not raised at trial cannot be raised on appeal] cannot be applied so absolutely in a criminal court, because the liberty of the subject is at stake, and the failure by counsel to take an objection during the trial will not necessarily preclude its success in the appellate court. But such a failure is a very important matter for consideration all the same: it may show that no real prejudice could have been caused to the accused (Stirland v. Director of Public Prosecutions; Reg. v. Smythe). In R. v. Campbell the matter was put thus by Blair C.J.:
“Personally, I am of the opinion that when a Judge, after summing-up, asks counsel for the Crown and counsel for the defence whether they desire any other direction and they say they do not, that concludes the matter. Of course if it were established that there was something in the summing-up which was manifestly against all sense of justice and law, this Court undoubtedy [sic] would consider it.”
And by E. A. Douglas J. at p. 138:
“When the Judge specifically asks the prisoner's counsel whether he desires any further direction and counsel answers in the negative, I think that is sufficient, and that the matter should not be subsequently raised for the first time in a Court of Appeal.”
I agree, with respect, with these pronouncements, subject, of course, to the reservation expressed by Blair C.J. and to the overriding power and duty of the appellate court to interfere if the legal course of trial has been gravely subverted or if an injustice has been done to the prisoner. A misdirection on the law, for example, of sufficient substance will usually stand on a different· footing from an omission to give a particular direction on the facts. In such a case an appeal may well be allowed despite a failure to take any objection at the trial; see, for example, Reg. v. Stafford.
[Footnotes omitted.]
In Varley, the High Court addressed this topic in the following terms:[8]
In relation to the submission that the judge's decision to direct the jury as to the possibility of a verdict of manslaughter after the appellant had addressed the jury, it should first be said that if there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, he was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases, e.g. Mancini v. Director of Public Prosecutions (supra); R. v. Gammage (1969), 122 C.L.R. 444 ; Pemble v. The Queen (1971), 124 C.L.R. 107. The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury's satisfaction of all the elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal.
[8] Varley v The Queen (1977) 51 ALJR 243, 245.
A Judge’s directions to a jury should accord with the real issues in the trial. Attention was drawn to the following observations of the High Court in Alford v Magee:[9]
...the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. ... the only law which it [is] necessary for them to know [is] so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are. ...
[Emphasis added.]
[9] Alford v Magee (1952) 85 CLR 437, 466.
The Director, with reference to a number of the grounds, further suggested that counsel on appeal were taking an entirely different approach to that taken at trial. The Court was reminded of the observations made by Gleeson CJ in Nudd:[10]
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial.
[Emphasis added.]
[10] Nudd v The Queen (2006) 80 ALJR 614, 618.
The role of the summing up includes a crystallisation of the legal issues in a way that simplifies the jury’s task of applying the relevant legal principles to the facts of the case. A judge should take care to explain the law in a way that is practical having regard to the context and the real issues in the particular case. It is well settled that it is not necessary for a judge to identify each piece of evidence or argument relevant to a defendant. As the High Court observed in Domican:[11]
... Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it “is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities”. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.
[Emphasis added.]
[11] Domican v The Queen (1992) 173 CLR 555, 561.
In addressing the grounds of appeal, where appropriate, I have been guided by the above observations.
The Appeal
The defendant has appealed on multiple grounds, which are convenient to consider under the following broad headings:
-the Judge’s alleged failure to correctly identify, sum up and direct on available self defence provisions under the Criminal Law Consolidation Act;
-the Judge’s alleged failure to leave the defence of provocation;
-complaints resulting from the two alleged alternative cases presented by the prosecution, being the striking case and the asphyxiation case;
-complaints as to directions given by the Judge in respect of the defence case;
-the Judge’s alleged failure to direct the jury properly in respect of the element of intention and its interplay with the defendant’s intoxication;
-complaints as to the admission of evidence of conversations between the defendant and the police, and the directions provided as to the use of that evidence; and
-a claim that the verdict is unreasonable and cannot be supported having regard to the evidence.
Self Defence and Defence of Another
Section 15 of the Criminal Law Consolidation Act relevantly provides:
(1) It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2
(3) For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a) in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
...
Notes—
1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
[Emphasis added.]
The first element of the defence of self defence, as provided by section 15, is a genuine belief by the defendant that the conduct to which the charge relates was necessary and reasonable for a defensive purpose. That is, the prosecution must negative, beyond reasonable doubt, that the defendant had such a genuine belief. Then the prosecution must negative, beyond reasonable doubt, that the defendant’s conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that he or she genuinely believed to exist.
Section 15(1)(a) involves an assessment of a defendant’s subjective belief as to what was necessary and reasonable. On the other hand, section 15(1)(b) requires a consideration from an objective standpoint, but in the circumstances as the defendant genuinely believed them to be, of the proportionality of the defendant’s response to the threat.
On appeal, the defendant complained that the Judge directed the jury that the phrase “necessary and reasonable” in section 15(1)(a) required consideration of whether the defendant subjectively believed that force of the level applied was called for by the circumstances he believed to exist.
In the course of the summing up, the Judge directed the jury:
When you are considering the first limb, you must consider what the accused himself believed was necessary and reasonable in all of the circumstances in which he found himself at the moment at which he performed the relevant act. We call this a subjective test because all you consider is the subjective state of mind of the accused. You do not consider what some imaginary person would have believed. It is the actual perceptions and beliefs of the accused himself which are relevant here. His perceptions may, of course, be affected by factors such as tiredness, the effects of alcohol and any emotional state he experienced at the time of the events. The first limb is concerned with the need to use force at all and focuses on the accused’s genuine belief that the force of that level was needed for a defensive purpose.
[Emphasis added.]
Following a question from the jury, the Judge later provided the following direction:
The word ‘necessary’ means that the accused believes that it is necessary to inflict the force used by the accused to avoid the attack or threatened attack by the other person. The word ‘reasonable’ means that the accused believes that it is reasonable to inflict the degree of force used by the accused in order to avoid being attacked by the other person. Often there will be a large overlap between those words and if the accused believes that it is necessary to inflict the force used, it is likely that it will follow that the accused also believes that it is reasonable to do so. There will be situations in which the accused believes it is necessary to inflict the force to avoid being attacked, but does not believe it is reasonable. For example, if the only way for A to stop B very lightly slapping A on the face were to shoot B with a gun, the jury might infer that A believed that it was necessary to inflict the force used to defend himself but there is no reasonable possibility that he believed that it was reasonable to inflict the level of force used.
I do not consider there to be any error on the part of the Judge. The directions require consideration of the two matters addressed in section 15(1)(a) from the defendant’s point of view, being the necessity of defence and its reasonableness or proportionality. As Vanstone J noted in Fragomeli:[12]
... The fact is that the first limb of the definition of self-defence does import, in a limited way, the concept of proportionality. Plainly an accused’s genuine belief must extend to the necessity to employ force and to the degree of force he uses. ...
[12] R v Fragomeli [2008] SASC 96, [28] (Sulan J agreeing).
The defendant on the appeal complained about the Judge’s direction concerning section 15(1)(b), in that the Judge directed the jury to consider the question of proportionality by applying their own assessment, as reasonable persons. The Judge relevantly said:
When you are considering the second limb, you must:
(a)consider the belief of the accused as to the threat confronting him and the other occupants and as to the circumstances in which he found himself (remembering that the prosecution bears the onus of proof beyond reasonable doubt as to what that belief was); and
(b)then apply your own assessment as a jury, as reasonable persons, whether that conduct was or was not reasonably proportionate to that threat in those circumstances.
The second limb introduces a concept of objective proportionality as between the threat faced by the accused and his reaction. That is why we call it an objective test. It poses the question: was the accused’s reaction to the threat, as he genuinely saw it, in the circumstances as he genuinely saw them, reasonably proportionate to that threat? This does not imply that the force used by the accused cannot exceed the force used against him or the perceived threat of force against him. There may be no other means of defence open to the person attacked. It is all a question of what is reasonable in the circumstances.
[Emphasis added.]
Referring to the aid memoire the Judge provided to the jury, the Judge further directed:
... ‘Are you satisfied beyond reasonable doubt that what [the defendant] did was not reasonably proportionate to the threat that he believed to exist in the circumstances he believed to exist?’ So that is what I call the objective test in self-defence, was it reasonably proportionate? If you look at the threat [the defendant] thinks existed, you look at the circumstances he thinks existed but then you place yourselves in his position, yourselves being reasonable people, and you ask yourselves ‘Is what he did reasonably proportionate to that threat as he believed it to exist in the circumstances he believed to exist?’...
There is no error in the direction. The test is objective. Given that the jury were undertaking the responsibility of deciding whether the actions were reasonably proportionate, it is not an error to direct the jury to apply their own assessment as reasonable persons.
The defendant complained that there had been an “unwarranted circumscription” of the defence case with respect to self defence. On appeal, counsel said that the Judge unnecessarily and incorrectly limited the potential application of section 15, and section 15C, of the Criminal Law Consolidation Act by removing the concept of defence of another from the jury’s consideration.
I do not consider there to be any substance in this submission. The jury cannot have been in any doubt that self defence included defence of another. When first directing on unlawful force the Judge directed:
... I will use the term ‘self-defence’ for convenience to refer to defence of either one’s person or of another person. ...
The Judge then made repeated references to the concept encompassing both self defence and defence of another. In the aid memoire provided to the jury, it was made clear that the concept encompassed the defence of another. The same approach was taken when reminding the jury of the position of both the prosecution and the defence on this issue.
Following a question from the jury, a further direction was given in which the Judge emphasised that self defence included defence of another.
It may be observed that the Judge’s directions reflected the real issue in the case. The direction was given with the specific agreement of the defendant’s senior counsel. The extent to which any further reference was needed to this issue is best judged in light of how the case was left to the jury. The direction agreed to by defence counsel was as follows:
I turn to the words ‘acts in self-defence or in defence of another’. The word ‘defence’ here means that the accused is using force for the purpose of protecting himself or someone else against an attack or threat of an attack by another person. In this case, [BM] gave evidence that, while [the deceased] was attacking her, [the defendant] intervened by either pulling or pushing [the deceased] off her. The prosecution accepts that, in this initial intervention by [the defendant] which freed [BM] to flee upstairs, [the defendant] was acting in defence of another person, namely [BM], and this initial intervention was lawful and justified. Once [BM] had fled upstairs, [the defendant] was no longer acting in defence of another person. It is not the prosecution case that [the defendant] inflicted on [the deceased] any fatal wounds while [BM] was still in the garage.
While it is a matter for you, you might think that, in all of the circumstances, it is a reasonable possibility that [the deceased] then entered into an altercation with [the defendant] who was then called upon to act in defence of himself against attack by [the deceased]. As [BM] was upstairs while the events unfolded between [the deceased] and [the defendant], when you come to consider whether [the defendant] was acting for a defensive purpose at the relevant time - and I will come back to what the relevant time is - you are considering whether [the defendant] was acting in self defence rather than in defence of [BM].
As you know, it is the defence case that [the defendant] continued to act for the purposes of defending himself until the fight was over and to believe that his acts were necessary and reasonable for that purpose.
On the other hand, it is the prosecution case that [the defendant] immediately or very quickly became the aggressor and was no longer acting for a defensive purpose and no longer believed that his acts were necessary and reasonable for that purpose.
[Emphasis added.]
Self Defence – Section 15A
Section 15A of the Criminal Law Consolidation Act provides:
(1) It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i) to protect property from unlawful appropriation, destruction, damage or interference; or
(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b) if the conduct resulted in death—the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable—
(i) to protect property from unlawful appropriation, destruction, damage or interference; or
(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b) the defendant did not intend to cause death; but
(c) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.2
(3) For the purposes of this section, a person commits a criminal trespass if the person trespasses on land or premises—
(a) with the intention of committing an offence against a person or property (or both); or
(b) in circumstances where the trespass itself constitutes an offence or is an element of the offence.
(4) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Notes—
1 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2 See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
On the facts, the relevant aspect of section 15A(1) is subsection (1)(a)(ii). The subsection provides a defence if the defendant genuinely believed the conduct was necessary and reasonable to prevent a criminal trespass to the premises or to remove from the premises a person committing a criminal trespass to those premises. The aspect of section 15A(1)(a)(ii) that refers to preventing a criminal trespass to premises can be put to one side. It deals with conduct before the relevant trespass. In this case, any alleged trespass by the deceased had already commenced unbeknown to the defendant.
The only potentially relevant aspect was if the defendant’s conduct might have been to remove the deceased from the premises. At trial, senior counsel for the defendant specifically told the Judge that that approach to the facts was not open. Senior counsel said:
... I’m probably just being overly cautious but I don’t want it to be thought I was making some tactical decision not to embrace 15A - strategic decision, which is sometimes referred to, I’m not. I hear what your Honour says and I think certainly to go down the path of embracing 15A - it’s probably too late now, but be that as it may, it will only overcomplicate it and I’m not convinced in my own mind it is actually caught on the facts of the case. I have raised it but I don’t say any more.
On appeal, it was argued that the approach of counsel was not necessarily the end of the matter. Counsel, it was said, was arguably incorrect. The defendant’s case was that he was protecting at least BM and himself. Presumably, that at least impliedly meant that he did not want the deceased to remain on the premises.
However, section 15A(1) added nothing in the present proceeding. Its operation required the establishment of two relevant matters. First, that the defendant genuinely believed the conduct to be necessary and reasonable for the relevant purpose, in this case the only option being to remove the deceased from the premises. Second, that the conduct was reasonably proportionate.
As to the first, the defendant’s case at trial was that the threat to BM and the defendant was a more immediate and significant one to that contemplated by section 15A. The defendant’s case was that he was defending himself. On the evidence, there was no possible circumstance where the defendant thought his conduct was necessary and reasonable to remove the deceased from the premises, but did not believe that the same conduct was necessary and reasonable to defend himself or BM. Section 15A added nothing in this context. As to the second, section 15A(1)(c) added nothing to section 15. What the prosecution had to prove remained the same. It is to be recalled that a jury need only be given those directions necessary to decide the real issues in the case.
It is necessary to consider whether section 15A(2) had any application. It allows a verdict of manslaughter in certain circumstances. The only relevant consideration for current purposes is that it allows that verdict where the conduct is not proportionate.
Section 15A(2) added nothing in this case. As that subsection sets out, that verdict required the same subjective element as section 15A(1) but the conduct did not need to be reasonably proportionate to the threat. On the particular facts of this case, if that view was formed, then manslaughter already arose pursuant to section 15(2). There was no relevant difference. The jury were adequately directed.
Self Defence – Section 15C
Section 15C provides:
(1) This section applies where—
(a) a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and
(b) the victim was not a police officer acting in the course of his or her duties.
(2) In a case to which this section applies, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not (objectively) reasonably proportionate to the perceived threat if the defendant establishes, on the balance of probabilities, that—
(a) the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and
(b) the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and
(c) the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.
(3) In this section—
criminal misconduct means conduct constituting an offence for which a penalty of imprisonment is prescribed;
drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;
home invasion means a serious criminal trespass committed in a place of residence;
non-therapeutic—consumption of a drug is to be considered non-therapeutic unless—
(a) the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or
(b) the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;
relevant defence means a defence under section 15(1) or section 15A(1).
On the defence case the defendant was not substantially affected by alcohol at the time of the assault on the deceased and, as such, the exception in section 15C(2)(c) did not apply.
On appeal, the defendant advanced two complaints in respect of the Judge’s directions as to section 15C of the Criminal Law Consolidation Act. First, that some directions focused consideration on the defendant’s belief to the deceased “entering” as a trespasser. Second, that some of the directions focussed attention on the defendant’s belief as to the deceased’s intention to commit an indecent assault, rather than any offence against the person.
At times in the summing up, the Judge stated that the defendant needed to believe that the deceased was “entering or remaining”. This was also the way it was addressed in the written aid memoire. However, later in the summing up, when directing the jury as to issues in the case, he referred to the relevant belief as being entry as a trespasser.
It was not necessary to refer in all directions to the fact that the belief could be as to the deceased entering or remaining as a trespasser. It is necessary to consider carefully the issue to which the direction goes. The relevant issue upon which section 15C focused in this context is ultimately no more than whether the defendant believed the deceased to be a trespasser. That is, that the defendant was present without consent and to commit an offence against the person. In the circumstances of this case, it was open to the jury to find that the deceased was a trespasser and that the defendant believed that.
The balance of the directions, including the written aid memoire, made plain that the relevant state of mind could be as to entering or remaining.
In respect of the second complaint, the prosecution did not dispute that the deceased had committed a serious criminal trespass in a place of residence. The deceased had arrived at the house with BM and NS. NS said that the deceased had said he would come inside but she told him to stay in the car. There was no dispute that he indecently assaulted both women once inside. He was a trespasser. While this factual background is important, section 15C directs attention to the defendant’s actual belief.
BM gave evidence that the deceased grabbed her breast and bottom, she was screaming and that the defendant had pushed or pulled the deceased from her. A review of the evidence discloses that while the defendant undoubtedly saw the deceased assaulting BM, there is limited, if any, evidence to suggest that the defendant would have understood it to be an indecent assault. However, given the absence of any dispute about what occurred, and the prosecution’s acceptance that the defendant must have witnessed an indecent assault, it was not inappropriate for the Judge to direct on the basis that the defendant had understood an indecent assault to be occurring.
The Judge directed:
A serious criminal trespass is committed by someone entering or remaining as a trespasser; that is, without the consent of the occupier of the house, with the intention of committing an offence against a person.
A person becomes a trespasser even if he or she was originally invited into someone’s house if he or she is told to leave and refuses and fails to leave.
An offence against the person includes assault. Assault includes the intentional application of force. An offence against the person also includes indecent assault.
The Judge then directed that there was no dispute that the defendant believed that an indecent assault was being committed. The Judge said:
For the home invasion rule to apply, you need to be satisfied of these two things on the balance of probabilities. The first is: ‘Are you satisfied on the balance of probabilities that at the time [the defendant] believed that [the deceased] had entered or was remaining as a trespasser with the intention of committing an indecent assault?’
Now again, tomorrow after I have gone through the evidence, I will give you some more directions about that, but that is the first limb of the home invasion rule. You have heard counsel address you about that. [The prosecutor] put to you that you should not be satisfied that [the defendant] believed that [the deceased] was a trespasser. She did not put to you that you should not be satisfied that [the defendant] believed that [the deceased] was committing an indecent assault and that is because [NS] and [BM] both gave evidence that, well in particular [BM] gave evidence that she was being subjected to an indecent assault at the point that [the defendant] entered the garage. So, on her evidence, he saw with his own eyes the indecent assault. So that part of it is not really in issue. The part that is in issue is whether [the defendant] believed that [the deceased] was a trespasser, that is, are you satisfied on the balance of probabilities that [the defendant] believed that [the deceased] was in the garage without the consent of [NS] and [BM]. Again you have heard counsel address you on the merits of that issue and ultimately it is a question for you to decide the merits of that issue but that is the question.
The Judge then directed:
The prosecution case accepts that [the defendant] initially intervened in defence of [BM]. ...
Then later:
On the uncontested evidence of [BM] and [NS], it is clear that [the defendant] must have believed that [the deceased] was committing an indecent assault on [BM] when he intervened. The real issue in question 6 [in the aid memoire] is whether you are satisfied on the balance of probabilities that [the defendant] believed that [the deceased] had entered the house as a trespasser with the intention of committing an indecent assault.
In my view, the Judge did not err in these directions. As earlier noted, it was accepted by the prosecution that the defendant had witnessed an indecent assault on his niece.
Provocation
In Lindsay,[13] the High Court addressed the law of provocation applicable in this jurisdiction. Although Lindsay was a case where the defendant denied any involvement in the killing at all and asserted that it was the act of another, his counsel had specifically raised before the Judge and jury the question of the defence of provocation – it formed a substantial part of his final address to the jury. This was understandable as the evidence that the defendant had stabbed the deceased to death was overwhelming. However, there was a substantial body of evidence from independent witnesses as to the insults directed to the defendant by the deceased and of the deceased’s frenzied response.
[13] Lindsay v The Queen (2015) 89 ALJR 518.
As to the relevant principles, the plurality observed:[14]
[14] Lindsay v The Queen (2015) 89 ALJR 518, 523.
Provocation at common law operates to reduce what would otherwise be murder to manslaughter. Although it is common to describe the doctrine as a “partial defence”, the true position is that the unlawful intentional killing of another under provocation is not murder. The malice that is implicit in the intention to kill or to do grievous bodily harm is denied in the case of a killing done under provocation. There are two conditions for the operation of the doctrine: first, the provocation must be such that it is capable of causing an ordinary person to lose self-control and act in the way the accused did (the objective limb); and second, the provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (the subjective limb). The focus of the objective limb is upon the capacity of the provocation to cause an ordinary person to lose self control and form the intention to kill or to do grievous bodily harm. Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine.
Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams’ classification, it is a question of “evaluative fact”. The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury’s consideration. The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it. The respective roles of judge and jury in the latter determination is the issue raised by the first ground of the appeal.
[Footnotes omitted.]
The plurality, when addressing the evidence in Lindsay, observed:[15]
The capacity of the evidence to support a conclusion that the prosecution might fail to negative the objective limb of the partial defence did not turn upon the appellate court’s assessment of attitudes to homosexuality in 21st century Australia. It was open, as the appellant submits, for the jury to consider that the sting of the provocation lay in the suggestion that, despite his earlier firm rejection of the deceased’s advance, the appellant was so lacking in integrity that he would have sex with the deceased in the presence of his family in his own home in return for money. And as the appellant submitted on the hearing of the appeal in this Court, it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the Aboriginal man’s home and in the presence of his wife and family may have had a pungency that an uninvited invitation to have sex for money made by one man to another in other circumstances might not possess.
[Footnote omitted.]
Nettle J addressed the evidence in comparable terms:[16]
Taking the circumstances disclosed by the evidence as a whole, the provocation as it might have been perceived by the appellant (and thus the force of the provocation to which it must be supposed an ordinary person in the position of the appellant would have been subjected) had a larger dimension than merely an unwanted homosexual advance on a heterosexual man. Other relevant considerations included that the appellant was hosting the deceased as a guest at the appellant’s house; had reacted with anguish and loathing when the deceased made his first advance of the evening; had threatened violence if anything of the kind were repeated; and was then insulted in the presence of his partner, sisters and friends with an offer of several hundred dollars to prostitute himself to the deceased’s desires. Further, as counsel for the appellant suggested in the course of argument (although no such submission was advanced below), it is not impossible that a jury could reasonably infer that, because the appellant is Aboriginal, he perceived the deceased’s conduct towards him to be racially based and for that reason especially insulting.
[Footnote omitted.]
[15] Lindsay v The Queen (2015) 89 ALJR 518, 528.
[16] Lindsay v The Queen (2015) 89 ALJR 518, 535.
In the present proceeding the circumstances are wholly different. Senior counsel for the defendant had informed the Judge that provocation was not a real issue in the case and invited the Judge not to leave provocation. It may be understood that the prosecution conducted its case on the same understanding. The defendant did not give evidence. In his police statements, the defendant denied any involvement in any assault and suggested that he had witnessed a fight in which he was not involved. These statements were tendered by the prosecution as lies evidencing guilt.
Prior to closing addresses, both counsel explicitly addressed the Judge on provocation. Senior counsel appearing for the Director submitted:
... as I understand, [senior counsel for the defendant] is going to invite your Honour not to leave provocation to the jury. In the face of that, I would agree with that course, would agree you not leave provocation. In my submission, on the facts of this case, there isn't evidence really to support either limb, particularly in a case where it is going to be put a positive act of self-defence, deliberate conduct, the two end up inherently inconsistent.
[Emphasis added.]
Senior counsel for the defendant then informed the Judge:
... I've been in two minds about the question of provocation, but I think my learned friend is correct. It is probably going to cause more trouble than it is worth when, realistically, it is not an issue that has been ventilated, to try and justify provocation or it to the jury, when really the case is run on the basis of self-defence and home invasion, and an absolute denial in terms of asphyxiation as alleged by the girls has the genuine problem of confusing the jury, so I’m not asking your Honour to leave provocation. There are cases that say even if events don't - I'm not a personal believer in that. I don't make the law, we simply put it. I think it is more helpful if we focus on what are the real issues in the case, what issues are joined between the parties, then we have our respective arguments accordingly. I must say, that is the way this trial has been run from beginning to end.
[Emphasis added.]
The defendant, now represented by different senior counsel, seeks to adopt a completely different approach to the case. The submissions advanced pay no regard to the fact that the entire trial was conducted by all concerned on the basis that provocation was not a real issue. This was not a question of mere tactical manoeuvring at trial.
The suggestion on appeal was that, notwithstanding that the trial did not address provocation as a real issue at any time, it is appropriate for this Court to allow the appeal. These circumstances give rise to a case that is quite distinct from the recent authorities of the High Court and, in particular, from the decision in Lindsay.
It is to be accepted that the view of senior counsel at trial did not alleviate the Judge from the duty to leave provocation to the jury if it was open on the evidence. Nonetheless, the view of senior counsel who heard the evidence and who had conducted the defence case is not to be ignored.
As I understand it, the appellant here submits that the prosecution did not prove that the physical blows were a substantial cause of death on the basis of two main contentions.
The first contention is that the high level concentration of methylamphetamine in the blood was potentially fatal, and could potentially cause the deceased to suffer cardiac arrhythmia; further, if a person with that level of methylamphetamine was involved in an altercation, there would be an increase in adrenaline and blood pressure which is also capable of bringing on a heart attack. Dr Charlwood generally agreed with these propositions in the abstract.
As to this contention, it suffices to say that even if, which is not established, the presence of methylamphetamine in the deceased’s bloodstream did play some part in the death, that in no way negates either the striking or the asphyxiation as being a substantial cause of death in the circumstances of this case.
The second contention is that Dr Charlwood generally agreed in the abstract with the propositions put to her that if a person in the position of the deceased was still alive, was placed in a vehicle and was moved to another location, he would have been bleeding profusely from the head; that he would have needed medical attention; and that someone could have bled to death as a result of these blunt force head injuries without medical intervention. In addition, Dr Charlwood generally agreed that it was possible that a lack of oxygen could have contributed to the death in the position of the deceased; that when someone is semi-conscious or unconscious they might not be able to maintain their airway in a position that will keep it flowing freely; that there is also a possibility of aspiration of blood or vomit that could block the airway, and that although the deceased did not have anything blocking his airways, placing him in an odd position could cause difficulty breathing if he was unconscious.
The appellant submitted that on the above basis, the deceased might have still been alive at the time he was driven from the house; that if so, being left in the car was a break in the chain of causation, as the deceased might have bled to death or suffocated in the car which may not have occurred if he had been taken to hospital in accordance with the appellant’s wishes. It was put in cross-examination of NS and BM that the appellant had asked them to take the deceased to hospital. Neither agreed with that proposition and the appellant did not give evidence that he had asked them to do so.
As to this second contention, it suffices to say for present purposes that first, there was no evidence before the jury that the appellant had told BM or NS to take the deceased to a hospital. However, even if there were such evidence, the plain and simple fact was that, whatever the exact circumstances were surrounding the deceased suffering the injuries that he did, it surely behoved the appellant to summon an ambulance. If he simply told two intoxicated young women to take the deceased to a hospital in the circumstances of this case, and they failed to do so, then on any view of the authorities the accused would still have substantially caused the death.
I consider that the Judge’s directions in the present case were adequate.I would reject ground of appeal 7.
GROUNDS OF APPEAL 10-12: WERE THE BLOWS UNLAWFUL?
The appellant submits that the Judge failed adequately to direct in relation to various aspects of ss 15, 15A and 15C of the Criminal Law Consolidation Act 1935. The appellant first submits that the directions of the Judge suggested that s 15(1)(a) requires that the defendant believed that the conduct was proportionate to the threat, whereas the correct position is that proportionality is only dealt with in s 15(1)(b). It is sufficient to confirm that s 15(1)(a) does not specifically require a positive belief that the conduct was proportionate to the threat. However, in considering whether the defendant actually did hold a belief that the conduct was necessary and reasonable for a defensive purpose pursuant to s 15(1)(a), one does consider all of the facts; if the defendant’s conduct is completely disproportionate to any threat he could have apprehended, that apparent disproportionality may (not must) tend to indicate that the defendant did not in fact actually consider that his conduct was necessary and reasonable for a defensive purpose.[219]
[219] In R v Fragomeli [2008] SASC 96, Vanstone J stated at [28]: “The fact is that the first limb of the definition of self-defence does import, in a limited way, the concept of proportionality. Plainly, an accused’s genuine belief must extend to the necessity to employ force and to the degree of force he uses. Therefore, the appellant’s genuine belief had to encompass the whole of his conduct, being all three woundings. Nothing in the words chosen by the judge to express this requirement was apt to imply a further requirement of objective proportionality.”
The appellant then submits that the form of the Judge’s directions as to s 15(1)(b) were to be equated to erroneous directions given by the trial Judge in Stingel v The Queen in the context of the “ordinary man” test under the provocation doctrine.[220] There are very considerable differences between the “ordinary man” test and the test under s 15(1)(b). This ground of appeal is misconceived and the Judge was not in error.
[220] (1990) 171 CLR 312.
The appellant further submits in relation to s 15(1)(b), that some of the Judge’s directions here focussed on a belief by the appellant of the deceased’s intention to commit an indecent assault as distinct from any offence against the person. The s 15(1)(b) requirement is subject to s 15C(2)(a) which provides that the defendant’s conduct need not be reasonably proportionate to the threat that the defendant genuinely believed to exist if the defendant genuinely believed the deceased to be committing, or to have just committed, a home invasion; this is the “home invasion defence”. A home invasion is defined in sub-s (3) as a serious criminal trespass in a place of residence[221] and s 168 provides that the serious criminal trespass is committed when a person enters or remains in a place with the intention of committing a theft, or an offence against the person. On the evidence, the deceased had committed a serious criminal trespass in a place of residence; he had entered despite being told not to and he had indecently assaulted both women once inside as a trespasser. It is true that his Honour couched his directions in terms of a belief that the deceased had indecently assaulted as distinct from the more general words of the statute “any offence against the person” and I accept that this difference could make a difference in some cases where the accused could point to assault, but not to indecent assault. However, I do not think that this can have caused a miscarriage of justice here; it is difficult to accept that the jury here considered that the appellant thought that the deceased had assaulted his niece, but did not think that the deceased had indecently assaulted his niece.
[221] The property here was a place of residence as defined in s 170(3) of the Act.
The appellant further submits that some of his Honour’s directions focussed on a belief of the applicant as to the deceased “entering” as a trespasser without reference to the alternative of “remaining”. At times in the summing up, and in the written directions, his Honour correctly stated the necessary belief as needing to be to “entering or remaining”, but later when relating the law to the facts, on three occasions he referred to the relevant belief as entry as a trespasser. Arguably, a question might arise as to whether there is a risk of a miscarriage of justice in that the jury may have concluded that the applicant had only believed the deceased to be a trespasser but had not believed the deceased to have entered as a trespasser (and therefore, not taking into account the option of “remaining as a trespasser”, rejected the application of s 15C(2)(a)). I am far from saying that miscarriage of justice on this basis is established, but it is unnecessary to finally determine the matter since the appeal is to be allowed on another basis.
Finally, the appellant submits that the Judge failed to direct as to s 15A of the Act. However, at trial, trial counsel for the appellant eschewed reliance on s 15A and I accept the prosecution submission that, in the circumstances here, s 15A adds nothing to s 15 and no miscarriage of justice can be said to have occurred through the Judge not directing on s 15A. However, this matter (as with all other matters) should be reassessed at the retrial in the light of the evidence, submissions and circumstances then applying.
APPEAL GROUND 6: DIRECTIONS AS TO REQUIRED INTENTION
Ground of appeal 6 asserts that the Judge:
6.1Erred in directing the jury that if they were satisfied of either of the acts relied upon by the Prosecution as to its “striking case” or “asphyxiation case” that they would have “little difficulty” finding that the Applicant acted with the intention to kill or cause grievous bodily harm.
6.2Failed to direct the jury adequately or at all as to the interaction between the Prosecution case as to the Applicant’s level of intoxication and proof of the specific intention required before the Applicant could be convicted of murder.
As to ground of appeal 6.2, the prosecution submitted strongly to the jury that there was a substantial body of evidence that the appellant was heavily intoxicated and that he lost the benefit of s 15C (the home invasion defence) due to self-induced intoxication. Senior counsel for the appellant contested that prosecution position and continually stressed the evidence of the police officers who saw the appellant at McAllan Avenue and who testified that he did not then appear to be intoxicated. Counsel clearly took an understandable forensic decision to submit to the jury that the appellant was not intoxicated at the time that he struck the deceased so as to have the benefit of the home invasion offence; he therefore did not wish the Judge to give directions suggesting that the appellant’s thought processes may have been affected by intoxication. The directions of the Judge were restrained and in accordance with trial counsel’s wishes:
The second part of the home invasion rule raises the question whether you are satisfied on the balance of probabilities that Mr McCarthy’s mental faculties when he was in the garage were not substantially affected by the consumption of alcohol. On the evidence of Mr Ford and NS and BM, there is no suggestion that Mr McCarthy’s consumption of alcohol was either involuntary or therapeutic. You have available to you two bodies of evidence relevant to your determination of the question which counsel have identified in their addresses to you. One body is the evidence of Mr Ford, NS and BM as to Mr McCarthy’s drinking and apparent state of drunkenness before the relevant events in the garage. The other body of evidence is the evidence of Senior Constable Milligan and also the evidence of Detective Cullinan that they did not detect that Mr McCarthy had been drinking alcohol or signs of intoxication after the relevant events. Your assessment of those bodies of evidence is a matter for you.
The present is actually a quite unusual situation for several reasons. First, there is a strong body of authority in South Australia (as elsewhere) that juries should be directed as to the important bearing of intoxication on the question of whether it is proven that the accused formed a particular intention.[222] The setting on appeal in such cases is the appellant contending for a high level of intoxication (and the commensurately high importance of correct directions) and the prosecution contending for a low level of intoxication (and commensurately minimal importance of directions). But here the positions are reversed. The prosecution plumps for a high level of intoxication to defeat the home invasion defence, but if the jury is to accept the prosecution case in this regard, the question is raised as to whether the appellant formed the intention required for the offence of murder, as to which the jury may need further directions.
[222] Cases include: R v Martin (1983) 32 SASR 419 (affirmed in R v Martin 58 ALJR 217); R v Fowler (1985) 39 SASR 440; R v Perks (1986) 41 SASR 335; R v Wilson (1986) 42 SASR 203; R v Brown (1987) Unrep SA CCA JN S9769; R v Ball, Bunce & Calliss (1991) 56 SASR 126; R v Curtis (1991) 55 A Crim R 209; Bedi v The Queen (1993) 61 SASR 269; R v Singh (Unreported, Supreme Court of South Australia, King CJ, Duggan and Debelle JJ, 18 August 1993); Davis & Hyland v The Queen (1995) 183 LSJS 186.
Further, superimposed on the above matters is the requirement to leave the matter of provocation to the jury and, in the circumstances here, an associated need to direct as to the relevance of intoxication to subjective loss of control.
In the present rather unusual circumstances, I consider that on the authorities, including that of the High Court in James v The Queen,[223] it was necessary to direct the jury fully as to the consequences of acceptance of the prosecution case that the appellant was intoxicated at the time of his infliction of blows upon the deceased. Such directions should have included the bearing of such intoxication upon the question of whether it was proven that the appellant held the intention requisite for the offence of murder concurrently with his performance of the relevant actions.
[223] (2014) 253 CLR 475.
As to ground of appeal 6.1, it may have been better not to have used the precise words that his Honour did, but putting aside the overlapping matter of intoxication directions dealt with above, this matter would not establish a miscarriage of justice in the context of the whole of the summing up.
GROUND OF APPEAL 8: ADMISSION OF POLICE QUESTIONING
The Judge held a lengthy evidentiary voir dire hearing from 10 to 13 November 2014 concerning the admission of evidence of police questioning of the appellant and reserved judgment. On 3 February 2015 his Honour delivered a judgment of some 31 pages, and declined to exclude the evidence.[224] I consider that the many authorities his Honour cited, and the principles he applied, were entirely appropriate to this case. His Honour made comprehensive factual findings and these were open to him on the evidence. I detect no error in his Honour’s decision to admit the evidence. I would reject ground of appeal 8.
[224] R v McCarthy [2015] SASC 11.
GROUND OF APPEAL 9: LIES AND POST OFFENCE CONDUCT
The Judge had several sets of dialogue with senior counsel for the appellant concerning the directions counsel requested on the topics of lies and post offence conduct and directed in accordance with those requests; counsel later made no complaints concerning the directions his Honour gave on these topics. These were very much forensic decisions to be made by counsel at trial and I do not apprehend that the directions given, or (as now suggested by different appellate counsel), a failure to give other directions not requested, could have led to miscarriage of justice. Of course, this is a notoriously difficult area and a comprehensive assessment of the position will need to be made in the light of the course of the retrial. I would reject ground of appeal 9.
GROUND OF APPEAL 13: UNREASONABLE VERDICT
Since success on a ground of appeal that the verdict is unreasonable may lead to a verdict of acquittal rather than a retrial, it is necessary to say something about ground 13 which appears as follows:
13.The verdict of the jury was unreasonable or cannot be supported having regard to the evidence in that:
13.1 The Prosecution’s “striking case” depended on proof that the head injuries sustained by the deceased were inflicted by the Applicant and were a substantial cause of his death.
13.2 The evidence of forensic pathologists called by the Prosecution was that the head injuries suffered by the deceased were survivable and that the deceased had in fact survived the injuries by at least 35 minutes.
13.3 The Prosecution’s “asphyxiation case” depended on the uncorroborated evidence of accomplices who were both grossly affected by alcohol.
13.4 The evidence of forensic pathologists called by the Prosecution was that the deceased had survived for at least 30-35 minutes following the infliction of the head injuries he suffered. The evidence did not permit a conclusion that this amount of time had passed before the alleged act of asphyxiation occurred.
13.5 There was no evidence that the alleged act of asphyxiation was capable of or did in fact cause death.
13.6 The evidence of BM was in conflict with the independent evidence of the scene and, in particular, the blood spatter.
13.7 The Applicant further relies on the grounds of appeal above and the inability of the Prosecution case to exclude alternative hypotheses consistent with innocence.
The assertions in paragraphs [13.2] and [13.4] are flawed in two major respects. The first is that the assertion that the evidence was that the head injuries were survivable in [13.2] must be read in the light of Dr Charlwood’s evidence (above at paragraphs [326]-[333],) that although one might say of such injuries that “there is the potential that they could be survivable”, the fact is that the deceased did die and the infliction of the injuries was a substantial cause of that death.
The second respect is the statement in [13.2]: “… the deceased had in fact survived the injuries by at least 35 minutes” and the repetition of that statement in [13.4]. This was not the evidence; in fact the evidence of both Dr Charlwood and Dr Koszyca was quite the opposite. Their evidence was that, in light of the repeated head trauma and deep tissue injury, one would expect swelling of the brain causing secondary responses of release of amino acids and a build-up of proteins over the period of survival (but not after death). These secondary responses can be detected by a process of “APP” staining if a person survives for at least 35 minutes after the injury, this being the minimum time taken for the secondary responses to sufficiently develop to a level that causes “APP” staining. Thus, if survival is less than 35 minutes, no APP staining can be detected, no matter how gross was the injury. In the present case, there was no evidence of APP staining referable to the relevant injuries, which indicated that the deceased had survived for less than 35 minutes after receiving the injuries. Thus Dr Charlwood stated:
AWith traumatic injuries, as in this case, you tend to have a panel of special stains and try and examine any of the injuries that are examined, have occurred, and also to look for any secondary responses that the brain has made to those injuries.
Q What sort of secondary responses?
AThe secondary responses are basically how the body reacts to injury. When there’s injury to the brain, the swelling that occurs, there’s release of excitatory and toxic amino acids, for instance, glutamate, there's a build-up of proteins. One of these proteins that is released by damaged nerve cells is stained for and this is one of the indicators that, if somebody has survived a certain amount of time, this stain can pick up the secondary indicators. This what’s called beta-APP is the stain, and this has been extensively studied in neuropathology, and the staining, the earliest that can be picked up is if there has been a survival period, so the body has had time to react to that injury, of 35 minutes before you can pick this positive staining up.
Q If a person dies within 35 minutes, you're not going to pick that stain up?
A That’s right, yes.
Q What was the result here of the microscopic examination?
A Beta-APP staining was not present in this case.
Q Indicating what to you?
AIndicating he has died within that 35-minute period. I say that because, even with seemingly minor findings that you see with the naked eye, there is an indication of repeated trauma to the head, there's deep tissue injury, with the thin film of blood on the surface of those ventricles, you would expect these secondary changes to have occurred if he had survived longer than that time. The brain would also have been more swollen as well. (Emphasis added)
There was no cross-examination of Dr Charlwood by Mr Edwardson relevant to this topic. Dr Koszyca gave similar evidence:[225]
[225] T1317.
Q What are you attempting to show up by the APP staining?
AWell, one of the reasons that - with head injury, there are various parts of the brain that can be injured, but one of the areas of particular interest are the axons. Axons are the long fibres that come out of nerve cells and connect the nerve cells. When there is impact or trauma to the brain, those may be damaged and you can’t see that just on a normal H and E stain, so what we do is we stain for a protein that normally is going up and down those axons. It is normally in such small amounts that we can’t see it even when we stain for it, but if the axon is damaged, that transport stops and so this APP starts accumulating and forms a mass that we can stain for and we can see. So we used beta-APP to indicate areas of injury within the brain and there are different patterns, because of the different causes of injury, and we can try and get some idea of the extent of damage that may have happened.
QIn order for you to obtain a result on the APP staining, is it necessary that the person live for a minimum of 35 minutes after sustaining the head injury?
AThat’s correct. The literature has not demonstrated APP positive staining before 35 minutes, a patient has to survive at least 35 minutes for it to accumulate to a sufficient certain level for us to be able to see using that stain.
QSo if someone dies in the course of being assaulted around the head or immediately afterwards you’re not going to get a result?
A No.
QIs it the case you might have severe axonal damage but you’ll see nothing on the APP staining?
A If it’s before 35 minutes, yes.
Q What were the results of the testing in this case?
AWell, the - basically there was no evidence of - just on the routine H and E stains it reflects what we’d seen microscopically. There was no obvious damage and the APP stain was, for the most part, negative. There were some small areas of positivity within the part of the brain called the corpus callosum but that was very small and patchy. I think that’s noted as ‘very occasional isolated axonal swellings and retraction balls scattered throughout the corpus callosum’.
QCan you date or age those sort of staining patterns that are created by the APP staining?
AWell, the thing about APP positivity and positive staining is that you have to wait 35 minutes before you can find it but it can go on for weeks, months or even years. When you see, particularly in this pattern of just what are called axonal swellings and retraction balls, I can’t make any statement regarding how long they’d been there but I would expect them to have been there for some period of time.
Q What do you mean by ‘some period of time’?
A Days.
Q Could it be up to years?
A Absolutely.
…
QIn summary, no matter how severe the axonal damage you’re not going to get a result in less than 35 minutes unless it’s been more than 35 minutes between the act and death?
A That’s right, yes. (Emphasis added)
The cross-examination of Dr Koszyca by Mr Edwardson relevant to this topic was as follows:
Q… Insofar as you said that there were occasional APP positive axonal changes in the corpus callosum, does that have anything to do with what we’re now talking about in the context of saying - is that what you’re saying: that that could have pre-existed, if you like, this head trauma?
A Yes.
Q Or could it be consequential upon the head trauma?
AIt would be - I - the pattern and the nature of the staining would not be what I’d expect to see in someone who’s just had a recent head trauma even if they’d survived 35 minutes. The pattern you tend to get in early survivals is not that of retraction balls and axonal swellings.
Q I move on to the next topic. … (Emphasis added)
Therefore, in stark contrast to the present assertion in ground of appeal [13.4], a correct formulation would be thus: “The evidence of forensic pathologists called by the prosecution was that the deceased had survived for a period ranging from zero time to, at the very latest, 35 minutes following the infliction of the head injuries he suffered. The evidence did not permit a conclusion as to the period of time within this range that had passed before the alleged act of asphyxiation occurred.” Such a proposition would then be accurate, but would in no way advance this, or any other, ground of appeal.
I mention only briefly the other paragraphs in ground of appeal 13. Paragraph [13.1] is entirely unremarkable. Paragraphs [13.3] and [13.6] are not objectionable on their face but simply assert a factual argument; provided an adequate warning was given, such evidence in the circumstances of this case could be acted on.
Paragraph 13.5 may also be quickly dismissed. If the jury were prepared to act on the accomplices’ evidence, the evidence of BM clearly described the closing of the airways of a then helpless person, who was moving somewhat but ceased to move at all by the end of that act; in the present circumstances, that evidence was capable of proving an act of asphyxiation causative of death. As Wood CJ at CL (with whom Foster AJA and Adams J concurred) observed in R v Moffatt:[226]
[64] … This submission, in my view, seeks to place too much significance upon the nature of those observations. They did not depend upon medical expertise. Rather, they were the kinds of observations that a lay person could make which, when considered in the light of the expert evidence, were consistent with the victim being alive before any attack by the appellant.
[226] (2000) 112 A Crim R 201.
Having regard to all of the evidence and circumstances (including the other matters purportedly imported by paragraph [13.7]), and applying the precepts in M v The Queen,[227] it is not demonstrated that the verdict was unreasonable. I would reject ground of appeal 13.
[227] (1994) 181 CLR 487.
Orders
I would order that:
1The appeal be allowed and the conviction be set aside.
2There be a new trial on the Information.
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