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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McDonald

Details

AGLC: R v McDonald [2015] SASCFC 99
Case: [2015] SASCFC 99
Decision Date: 29 July 2015

CaseChat Overview and Summary

The appeal concerned a conviction for murder. The appellant, Mr McDonald, was found guilty of murdering LT, with whom he had a long-term relationship and two children. The prosecution did not dispute that the appellant caused LT's death, but the central issue on appeal was whether the trial judge's directions to the jury regarding the necessary intent for murder were legally sound.

The legal issues before the court were whether the trial judge had misdirected the jury on the requirement of contemporaneity between the appellant's intention to kill or cause grievous bodily harm and the infliction of the fatal blows. Specifically, the court had to determine if the judge's directions allowed the jury to find the appellant guilty of murder if an intention to cause grievous bodily harm was formed at any point during a series of assaults, rather than requiring that intention to be present at the time of the specific blows that caused death. The court also had to consider whether, if a misdirection occurred, it resulted in a substantial miscarriage of justice, allowing for the application of the proviso to dismiss the appeal.

The court found that the trial judge's directions were indeed wrong in law. The judge had incorrectly directed the jury that the relevant time for assessing intention extended over a period encompassing multiple blows and the intervals between them. This allowed for the possibility that an intention to cause grievous bodily harm formed at any point during the assaults would suffice, irrespective of whether that specific blow contributed to the fatal outcome. However, the court applied the proviso to dismiss the appeal. This was because the court was satisfied, on the entirety of the evidence, that no substantial miscarriage of justice had occurred. The court reasoned that the evidence left no room for doubt that the appellant intended to cause grievous bodily harm, the jury had necessarily concluded this, and the general directions given to the jury had correctly emphasised the need for contemporaneity of intention with the fatal blows.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

My reasons follow.The evidence 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. 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”. 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”. 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. 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. 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.

Decision

Reasons for decision

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 I would dismiss the appeal. SULAN J: I agree with the reasons of the Chief Justice. I would dismiss the appeal. PARKER J: I would dismiss the appeal for the reasons given by the Chief Justice. I have nothing to add.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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 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].