R v Mischewski

Case [2019] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mischewski [2019] QCA 56

PARTIES:

R
v
MISCHEWSKI, Brandon John
(appellant)

FILE NO/S:

CA No 13 of 2018
SC No 741 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 18 December 2017 (Lyons SJA)

DELIVERED ON:

9 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2018

JUDGES:

Sofronoff P, Fraser JA and Mullins J

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – TEST TO BE APPLIED – where the appellant was convicted after trial of one count of unlawful striking causing death – where the appellant admitted to a friend that he had punched the victim in the head and kicked him whilst he was down and admitted to an undercover police officer that he had punched someone and they died – whether the admissions distinguished between criminal liability as a principal or as a party – where there were inconsistencies in the evidence of the witness who was present with the appellant when the victim was assaulted – where the witness gave evidence that it was the appellant who struck the victim – whether there was sufficient evidence to dismiss the reasonable possibility that the appellant’s criminal liability arose as a party and not as principal – whether an independent assessment of the whole of the evidence supports the verdict of guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where there were various drugs detected in the victim’s blood – where the forensic pathologist could not exclude the possibility that the drugs killed the victim before the fatal injury to the brain from the assault, but considered it unlikely – whether there was sufficient evidence for a jury to be able to exclude the reasonable possibility the deceased died by way of drug toxicity – where the scientific and legal standards as to the question of causation are different

R v Heginbotham, McCartney & Room[2008] QCA 47, distinguished
R v Summers [1990] 1 Qd R 92, followed
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

P J Wilson for the appellant (pro bono)
P J McCarthy for the respondent

SOLICITORS:

Murray Tutt Legal for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Mullins J and the order her Honour proposes.

  2. FRASER JA:  I agree with the reasons for judgment of Mullins J and the order proposed by her Honour.

  3. MULLINS J:  The appellant was convicted after trial of one count of unlawful striking causing death.  The victim was Mr Williams.  There was no challenge to any aspect of the summing up by the learned trial judge.  The appellant appeals against the conviction solely on the ground the verdict of the jury was…

Continue reading R v Mischewski

Sign in free to access the full text

Details
AGLC
R v Mischewski [2019] QCA 56
Case
[2019] QCA 56
Decision Date

CaseChat Overview and Summary

In the case of R v Mischewski, the appellant, Mischewski, appealed against his conviction for one count of unlawful striking causing death. The appeal centred on whether the verdict was unreasonable or insupportable given the evidence, and whether the jury could have dismissed the reasonable possibility that Mischewski's criminal liability arose as a party rather than as the principal offender. The case also considered whether there was sufficient evidence for the jury to exclude the possibility that the deceased died from drug toxicity rather than from the injuries sustained during the assault. The appeal was heard and dismissed by the court.

The legal issues before the court were whether the admissions made by Mischewski distinguished between his criminal liability as a principal or as a party, and whether there was sufficient evidence to support the jury's verdict of guilt. The court also had to consider whether there was sufficient evidence to exclude the reasonable possibility that the deceased died from drug toxicity. The court needed to assess if an independent evaluation of the evidence supported the jury's conclusion that Mischewski was the principal offender.

The court found that Mischewski's admissions, where he confessed to punching and kicking the victim, supported the evidence that he was the principal offender. The court further noted that the witness, Mr Ratima, who was present during the assault, provided consistent evidence that Mischewski was the one who delivered the fatal blows. The inconsistencies in Mr Ratima's evidence did not undermine the overall reliability of his testimony. Additionally, the court concluded that there was sufficient evidence to exclude the reasonable possibility that the deceased died from drug toxicity, as the forensic pathologist's opinion and the circumstances of the incident supported the jury's conclusion that the injuries were the cause of death.

The court dismissed the appeal against Mischewski's conviction, holding that an independent assessment of the evidence did not indicate that the verdict was unreasonable or unsupported by the evidence. The court found that the jury was properly directed and that their conclusion was based on credible evidence. Consequently, the court confirmed the conviction.

ORDERS:
Appeal against conviction dismissed.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The prosecution case at trial was that the appellant was the principal offender in that he was the person who delivered the blow that killed Mr Williams. The prosecution case was put on the basis of two alternative scenarios: the first, that during the altercation between the appellant and Mr Williams, the appellant struck Mr Williams in the head or face which caused him to hit the wall and then fall to the floor, striking his head, which caused the fracture and the extradural haemorrhage, or, the second, that Mr Williams fell to the floor during the altercation with the appellant and, whilst on the floor, the appellant stomped on his head, causing the fracture and the haemorrhage. The prosecution did not seek to prove guilt of the appellant on the basis that he was liable as a party to the act of another person. The prosecution identified for the jury from the outset of the trial that the critical issues were by whom, and by what means, Mr Williams’ death was caused.The evidence adduced at the trial relating to the altercation The main witness relied on by the prosecution was Mr Ratima. His evidence when he first gave evidence-in-chief can be summarised as follows. Mr Ratima was born in New Zealand. In January 2016, he was 40 years old and had been living in Australia for 19 years. Mr Ratima had known Mr Williams for three months prior to Mr Williams’ death through the “drug scene”. Mr Ratima was on a lot of drugs at that time. On Saturday 23 January 2016 the appellant told Mr Ratima that he needed to speak to Mr Williams. Mr Ratima and the appellant travelled from Maroochydore to the unit of one Mr Wells at Buddina. Both Mr Ratima and Mr Williams were staying at the home of Mr Wells at the time. In the days before his death, Mr Williams was using a fentanyl patch. Mr Williams also used heroin, whereas Mr Ratima used methylamphetamine. Mr Ratima had a telephone registered to him at that time, but also used Mr Wells’ mobile telephone with his permission from time to time. When Mr Ratima and the appellant arrived, Mr Ratima went into the unit first. There were people other than Mr Williams present in the living room (Ms Morcom, Mr Banfield, Ms Dawson and Mr Wells) and Mr Ratima said that the appellant wanted to speak to Mr Williams and asked the others to leave which they did by going into the bedroom. When the bedroom door closed, the appellant walked into the living room, so that Mr Ratima, the appellant and Mr Williams were present in the living room. The appellant was angry “straightaway” with Mr Williams and argued with him. Both men threw punches, but Mr Ratima could not remember who threw the first punch. Mr Williams was slow, shaky and slurring and “all over the paddock” and it was apparent to Mr Ratima that Mr Williams just had a shot of fentanyl patch. The fight started in the vicinity of the bedroom door and ended up by the kitchen. Mr Williams slipped over and hit his head on the wall and then on the tiled floor. He hit the top of the back of the head. After Mr Williams hit the floor and was “kind of knocked out”, Mr Ratima screamed at the appellant to get out. The appellant did not do anything to Mr Williams when he was on the ground. When Mr Ratima screamed, the others started coming out of the bedroom. The appellant left and Mr Ratima and Mr Wells picked Mr Williams up and put him on the mattress in the bedroom. Mr Williams was “groggy”, but Mr Ratima cleared his airways and he regained consciousness and said he was “fine”. Mr Ratima left after 15 minutes.

Decision

Reasons for decision

Dr Urankar could not rule out the possibility that the level of drugs in Mr Williams’ system would have caused his death, before the injury to his brain did, and therefore conceded a theoretical scientific possibility that drug toxicity may have caused Mr Williams’ death. That did not preclude the jury from being satisfied beyond reasonable doubt on the basis of the evidence about the incident and how Mr Williams appeared after the incident and Dr Urankar’s opinion that Mr Williams had to be alive for there to be the fatal haemorrhages observed in the brain stem due to the skull fracture that any reasonable possibility that Mr Williams’ death was caused through drug toxicity, rather than the injury to his brain, was excluded.Conclusion An independent assessment of the evidence does not impugn the verdict of the jury as either unreasonable or not supported by the evidence. It was open to the jury to be satisfied to the requisite standard by accepting Mr Ratima’s evidence that it was the appellant who punched and stomped on Mr Williams and to be satisfied on the basis of all the evidence that Mr Williams died from the fatal injury to the brain inflicted as a result.Order It follows that the order which should be made is:Appeal against conviction dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.