R v McDonald

[2015] SASCFC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCDONALD

[2015] SASCFC 99

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Parker)

29 July 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

The appellant was found guilty by jury of murdering his partner. A post mortem examination of the body indicated that the injuries had been caused by no less than fifty blows. The injuries were inflicted over a period of hours. The cause of death was attributed to internal bleeding. It was not disputed at trial that the appellant was the person who had inflicted the blows.

The appellant appeals the conviction to this court.

Held (per Kourakis CJ, Sulan and Parker JJ agreeing):

1.     The trial Judge misdirected the jury as to the contemporaneity requirement of the infliction of a series of blows that caused the death of the victim and the intention of the appellant to kill or cause grievous bodily harm. The misdirection was not capable of correction from the remaining directions.

2.     The correct direction should have stated that the prosecution must prove that at the time the appellant struck any series of blows that substantially contributed to the death of the victim he intended to kill or cause grievous bodily harm.

3.     The misdirection did not result in a substantial miscarriage of justice. The proviso is applied and the appeal is dismissed.

WORDS AND PHRASES CONSIDERED/DEFINED

"Intention", "Contemporaneity", "Murder", "Proviso", "Contemporaneity between intention and action", "Jury", "Directions", "Misdirection"

R v MCDONALD
[2015] SASCFC 99

Court of Criminal Appeal:   Kourakis CJ, Sulan and Parker JJ

1. KOURAKIS CJ:         The appellant was found guilty by jury verdict of murdering his de facto partner LT on about 3 May 2013 at Aldinga Beach.  A post mortem examination revealed some 95 injuries to LT’s body caused by no less than 50 blows.  The injuries were inflicted over a period of several hours and may have been inflicted intermittently over that period of time.  The pathologist, Dr Heath, attributed the cause of death to internal bleeding into fat and muscle tissue caused by these blows.  The bleeding was so extensive that it induced hypovolemic shock leading to a collapse of the functioning of LT’s vital organs. 

2. The appellant did not give evidence but, by the conduct of his defence, did not dispute that he had inflicted the injuries which caused LT’s death.  The appellant did not raise the issue of self-defence.  The sole issue at trial was whether the appellant had inflicted injuries on LT with the intention of killing or causing grievous bodily harm.  For the purposes of this case, I will refer only to the second limb of the relevant intention.  The cause of LT’s death was relatively uncommon. 

3. The appellant appeals against his conviction on the ground that the verdict was unreasonable and not supported by the evidence and on the ground that there was a misdirection in law on the requirement of contemporaneity of guilty intention and infliction of the blows causing death. 

4. I would dismiss the appellant’s complaint that the verdict was unreasonable.  The evidence of the extensive injuries inflicted on LT and the evidence of the appellant’s previous violent behaviour towards her supported a finding of a guilty intention at the relevant time or times.  The appellant was very drunk in the period over which the injuries were inflicted, but the level of intoxication is equally consistent with disinhibition as it is with an alcohol induced failure to appreciate the likely consequences of his acts.  Moreover, telephone calls the applicant made to his mother, and his conversations with ambulance and police officers, were not indicative of impaired cognition.

5. I accept that the Judge’s direction, that it was sufficient that the applicant intended to cause grievous bodily harm intended at any time in the period over which he inflicted the injuries, did not properly direct the jury that it was necessary that that intention exist contemporaneously with the infliction of blows which were a substantial cause of LT’s death.   However, I am satisfied that the misdirection did not result in a substantial miscarriage of justice.  I would therefore apply the proviso and dismiss the appeal.

6. My reasons follow.

   The evidence

7. At the time of her death LT was 25 and the appellant 32.  They had been in a relationship for about eight years and had two children.  At about 6.30 pm on 2 May 2013 LT left the appellant’s mother’s home with her two children.  Telephone text messages sent later by LT from her home suggest that nothing untoward happened to her before 9.59 pm that night. 

8. Between 3.33 am and 3.51 am on 3 May 2013 the appellant called his mother’s mobile phone five times.  His mother, who was at work, answered three of those calls.  She described the appellant’s demeanour as hysterical, screaming and crying.  He told her that LT was not breathing.  At 3.57 am the appellant called 000.  The appellant can be heard on the recording of the call, apparently upset and agitated, telling the operator “she’s stopped breathing”. 

9. Ambulance officers arrived at the home at 4.09 am.  They described the appellant as “panicking”.  They heard the appellant repeating “come on baby, wake up”. 

10. Later the appellant told police officers that he had fought with LT and he admitted that the bruising the ambulance officers observed were caused by him.  When interviewed, the appellant told police that he had started drinking Strongbow cider between 4.00 pm and 5.00 pm but had stopped at 10.00 pm.  He said that he had drunk 12 bottles.  He told the police that he and LT had argued about money from about 9.00 pm or 10.00 pm.  He said that they had initially started pushing each other before striking each other.  He admitted to striking LT with his arms and fists and, with a wooden spoon which he had obtained from the kitchen.  He admitted throwing a vacuum cleaner at LT.  He initially denied hitting LT with an aluminium pole but later admitted that he had done so.  He said that he was in a rage.  He said that after the fight subsided they laid down with each other in the lounge room and he apologised.  About an hour later he heard the deceased yelling that she could not breathe and asking for water.  She asked for an ambulance.  He helped her to the bathroom and splashed water on her head.  He later called the ambulance.

11. A length of aluminium “telescopic” tubing with a piece of black plastic moulding was found by police on the floor of the lounge room.  The tube was about half a metre in length with a diameter of about 25 millimetres.  The exposed end of the inner tube was jagged.   The tube had manufactured notches down one side.  Blood staining was located on its outer surface.  It was received into evidence as exhibit P9.  Another shorter length of 20 millimetres diameter round aluminium tubing with one end squashed was also found on the floor of the lounge room.  A black plastic handle about 280 millimetres in length was located on the lounge room floor. 

12. A piece of yellow plastic tubing similar to a steam mop head was located in the hallway next to the laundry.  A tube with yellow plastic moulding was located in the laundry.  Blood stains were identified on the yellow plastic moulding.  A length of aluminium tubing measuring 155 millimetres in length and 15 millimetres in diameter was located in the laundry.  There was a plastic handle that was also on the floor alongside the tube.  The two pieces appeared to fit together.  Hair was observed on the adhesive residue on the tubing.  A carved wooden spoon was located in the kitchen.

13. Blood staining was observed in the lounge room, kitchen, hallway, and laundry.  The blood was tested and was found to be consistent with blood which had originated from LT.  The pattern of blood staining observed was consistent with the attack on LT taking place in more than one location.

14. The pathologist, Dr Heath, documented and numbered all of the injuries she observed on LT’s body.  Some of the injuries overlapped.  Dr Heath described a total of 95 injuries which comprised blunt force injuries including bruises, lacerations, superficial abrasions, and various incised wounds to LT’s head, face, neck, front and back of her body, legs and arms.  Dr Heath explained that in cases of multiple blows it is not uncommon for the injuries to merge or blend together making it difficult to give the exact number of blows.  Dr Heath gave evidence that in exercises of this kind she generally underestimates the number of blows counting only the ones of which she is certain.  Dr Heath conservatively estimated that there were at least 50 applications of force to LT’s body but said that there could have been a significantly greater number.  It was not possible to tell whether many of the injuries were caused by one, or multiple, applications of force.  She was unable to say whether the applications of force were continuous.  She could draw no inference as to the force of a blow from bruising or lack of bruising.  Many of the injuries described were “tram track” bruising.  A tram track bruise is one with two parallel lines separated by a gap of no bruises.  Such bruising is most commonly caused by the use of a rod like object like a broomstick or piece of wood.  Dr Heath gave evidence that P9 with its jagged edge and small protrusions could have caused the superficial abrasions observed on LT. 

15. Bruises and abrasions were found on the external surface of LT’s neck and within the internal muscle layers.  There was a fracture of the left horn hyoid bone surrounded by recent haemorrhaging.  The fracture went through a previous healing fracture.  It was not possible to say how much force would have been required to fracture the bone because it had been weakened by the earlier fracture.  The fracture was consistent with strangulation or neck compression.  Dr Heath opined that it was possible that one mechanism caused all of the injuries to LT’s neck.  Dr Heath was not able to say more than that the hyoid fracture and associated neck compression was a possible contributing cause to LT’s death.

16. There was an area of confluent bruising, caused by the merging of multiple bruising, covering the back of LT’s left shoulder and on her upper back.  It was continuous and connected with an injury to LT’s left arm.  There was another area of intense dark bruising over the back of LT’s right shoulder and her right upper back.  That bruising had areas suggestive of tram-track bruising and was connected to injuries to LT’s right arm. 

17. The bruising of the left arm almost covered it entirely from the shoulder to the fingertips of the left hand.  The bruising was caused by multiple applications of force in very close proximity to each other that merged to give the appearance of one bruise.  There was similar extensive confluent bruising to three quarters of the circumference of the right arm from the right shoulder to the right fingertips including the palm of the right hand.  The bruising was caused by a large number of applications of blunt force in different planes from different directions over the entire upper arm and extending round to cover the right shoulder blade.  Dr Heath had never seen bruising to the palm of the hand of the kind she observed on LT.  In her opinion it was caused by repeated blunt force trauma to the hand. 

18. Dr Heath performed subcutaneous dissection of the front and back portions of LT’s trunk and arms.  Bruising commonly causes bleeding into the skin’s surface and underlying fat in a patchy distribution, but the bleeding found on the dissection of LT’s trunk was much more extensive and had “collected into the layers between the fat and the muscle and almost caused a spreading of the gap”.   Blood had pooled into those areas.  Similar pooling throughout the skin and fat was found on the dissection of the arms.   

19. Dr Heath’s opinion was that the cause of death was “the combined effects of multiple blunt force soft tissue injuries, so injuries to the skin supplying fat and muscles with blood loss, with extensive blood loss into their areas with a possible contribution from neck compression”.The word “their” appearing in the transcription of Dr Heath’s evidence must be a typographical error.  I am satisfied that Dr Heath was referring to the pools of blood which she had observed on dissection and that it was the blood loss into those three areas, associated as they were with the most extensive areas of bruising, to which she attributed the cause of death.

20. A read back from an analysis of a blood sample which was later taken from the appellant estimated that his alcohol level was 0.247% at 10.00 pm on 2 May 2013, 0.217% at 12.00 am, and 0.157% at 4.00 am. 

21. The prosecution also adduced evidence of the appellant’s prior violence against LT.  The witness MR described visiting the home of the appellant and LT in Mount Isa.  She found items strewn on the front lawn.  She heard the appellant yelling.  She left with LT.  Later, when MR visited LT and the appellant after their return to Adelaide, she noticed that LT had a black eye, a mark on her forehead and a scar on her face.

22. The witness saw LT in 2009 when LT had travelled back from Mt Isa to visit her mother in Adelaide.  The deceased had a black eye, a cut on one side of her forehead and a welt on the other side.  About one month later, TJ observed the deceased with a welt on her forehead and a black eye.  She photographed them.  TJ related yet a further incident in the same year when LT, the appellant, and their baby son attended a barbeque at TJ’s home.  She saw the appellant strike LT on her face with the back of his hand knocking her to the ground. 

23. A police officer gave evidence that he took photographs of LT in November 2012 after she had made a complaint of assault against the appellant.  Another police officer gave evidence that he took photographs of LT in 2013 after she had made yet a further complaint.  The photographs were received into evidence as exhibits P1 and P3.

24. LT’s mother JB gave evidence that she noticed a gash on the LT’s forehead when she was visiting Adelaide from Mount Isa in 2008.  She also noticed bruising to LT’s biceps.  When LT and the appellant moved back to Adelaide in 2009 they lived with JB for a while.  JB sometimes heard LT pleading with the appellant to stop beating her.  On an occasion shortly after LT’s baby son was born JB found blood all over the walls of the hallway of her home and blood soaked towels in the laundry.  There was broken glass on the floor and a strong smell of alcohol.  JB kept contact with her daughter when LT and the appellant moved to Christie Downs.   

25. SF was the appellant’s mother.  She recounted an occasion when the appellant and LT came to dinner at her home.  They both had been drinking.  She heard LT screaming “Michael stop stop”.  She found the appellant holding LT by her hair in the laundry.  She had to hit the appellant with a broom to make him release LT.  The appellant then ran outside. 

    Summing up

26. Early in his summing up the Judge directed on the question of intention as follows:

    The prosecution has to prove beyond reasonable doubt that at the time Mr McDonald did the deliberate acts which caused the death of [LT], he had an intention to kill her or an intention to inflict grievous bodily harm upon her.  These states of mind are separate and distinct.  The prosecution needs to prove beyond reasonable doubt that the accused had one of them at the time he did the acts causing death.  In this case the prosecution alleges an intention to inflict grievous bodily harm.  In relation to the mental element of the crime of murder, what the prosecution has to prove is the state of mind of the accused at the point of time of the acts causing death. 

    You can infer or conclude what a person’s state of mind is at any particular time from a consideration of the person’s state of mind leading up to that particular time and sometimes afterwards.  You do not take the particular point of time out of the context in which it occurred.  You look at it as part of a series of events that took place both before and after the acts causing the death of the deceased occurred.

    In this case the point of time is not an instant as might be the case where a person is stabbed or shot.  In this case the relevant time covers a longer period during which the accused has inflicted a series of blows to the deceased’s body which has caused the internal bleeding which resulted in her death.

    The prosecution must prove that at some point during that time the accused intended to inflict grievous bodily harm upon the deceased.  Grievous bodily harm is, as I have said, simply bodily injury of a really serious kind.  It is for you to decide what sort of injury would be described as being really serious, because that is an issue of fact and, as I say, issues of fact are for you to determine.

    (underlining added)

27. Later towards the conclusion of the summing up, the Judge reminded the jury of the need to find that the blows causing death were inflicted with a guilty intention as follows:

    In this case, the prosecution alleges that Mr McDonald is guilty of the murder of [LT].  As you are well aware, there is no issue that he caused the death of [LT].  I remind you that in order to find him guilty of murder, however, you must be satisfied that he inflicted the fatal blows deliberately and unlawfully with the intention to kill or cause really serious harm.

    Consideration

28. All of the directions except those underlined by me are correct in law.  For the reasons which I now give, I have concluded that the impugned directions are wrong in law. 

29. The proper direction on the issue of contemporaneity between intention and conduct for the crime of murder in the circumstances of this case was:

    The prosecution must prove that at the time that McDonald struck any collection of blows the combined effect of which was to cause a degree of internal bleeding which substantially contributed to the hypovolemic shock which caused LT’s death, he intended to kill her or cause her grievous bodily harm.

30. The first of the underlined sentences of the summing up directs the jury that the “relevant time” covers a longer period of time during which a series of blows were inflicted which caused internal bleeding and death.   The relevant time so identified was all of the occasions on which blows were struck and the intervals between those occasions.  The second underlined sentence is therefore a direction that, in the circumstances of this case, it is sufficient that an intention to cause grievous bodily harm was formed when any one of the blows was struck, irrespective of the contribution, of the particular blow or blows struck with that intention, to the bleeding which induced hypovolemic shock.  The other directions, which are general in nature, are not capable of correcting the error of law made in the impugned directions which purport to apply the correctly expressed general principle to the facts and circumstances of this case.  However, they do bear on the application of the proviso, to which I now turn.

    Application of the Proviso

1. I am not satisfied that the misdirection was productive of a substantial miscarriage of justice.   The deep rooted common law requirement that a conviction should only be entered when the trier of fact, properly directed, is satisfied beyond reasonable doubt requires Courts of Criminal Appeal to exercise caution before applying the proviso.  In Baiada Poultry Pty Ltd v The Queen the High Court explained the proper approach to the proviso as follows: ^[1]

   As was pointed out in Weiss, an appellate court must undertake the task of determining whether no substantial miscarriage of justice has actually occurred in the same way as it would decide whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence although, of course, the inquiries are distinct. That task mustbe undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. But two further points must be made about the determination of whether no substantial miscarriage of justice has actually occurred.

   First, the significance to be given to the fact that the jury has returned a guilty verdict must be assessed paying proper regard to what were the issues that the jury were directed to determine in order to arrive at a verdict of guilt. …

   The second point to make about determining the application of the proviso is that the Court held, in Weiss, that the proviso cannot be engaged “unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty”. That is a negative proposition. It states a necessary but not sufficient condition for applying the proviso. As this Court's decision in AK v Western Australia shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred.

   [1] (2012) 246 CLR 92 at [27]-[29].

2. On the totality of the evidence, I do not entertain a doubt about the appellant’s guilt of the crime of murder.  The very nature of the prolonged sustained beating of LT by repeatedly striking her with a rod or rods, in itself, is strong evidence of an intention to cause grievous bodily harm.  Even though I accept that there may be a doubt about the intention with which the first several blows were struck, I am satisfied that soon thereafter the appellant formed an intention to cause grievous bodily harm as he repeatedly beat LT about her arms, back and legs.  I am satisfied that the number of blows struck with that intention, substantially contributed to the bleeding which caused LT’s death.

3. That inference, overwhelmingly supported as it is by the evidence of the beating, is reinforced by the evidence of the prior violence to which the appellant subjected LT in their relationship and his admission that he was enraged at the time.  The appellant is more likely by reason of those related circumstances to have formed an intention to cause grievous bodily harm relatively early on in the course of the beating.

4. My conclusion that the evidence left no room for any doubt that the appellant intended to cause grievous bodily harm disposes of the appellant’s complaint that the jury’s verdict was unreasonable.  However, as the above passages from Baiada show, my satisfaction that the evidence proved the offence beyond reasonable doubt does not, in itself, entail the further conclusion that there has not been a substantial miscarriage of justice.  There are three other considerations in this case which lead me to that conclusion.  First no evaluation of the credibility or reliability of testimony given at the trial is required.  Secondly the jury necessarily concluded that, at least at some point in time the appellant struck the deceased with an intention to cause grievous bodily harm.  Thirdly, the general directions given to the jury correctly emphasised the need for contemporaneity of guilty intention with the blows which caused death.

   Conclusion

5. I would dismiss the appeal.

6. SULAN J: I agree with the reasons of the Chief Justice.  I would dismiss the appeal.

7. PARKER J:          I would dismiss the appeal for the reasons given by the Chief Justice. I have nothing to add.