R v Novley

Case [2022] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Novley [2022] QCA 21

PARTIES:

R
v
NOVLEY, Daniel Andrew
(appellant)

FILE NO/S:

CA No 247 of 2020
SC No 95 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville – Date of Conviction: 9 November 2020 (Holmes CJ)

DELIVERED ON:

25 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2021

JUDGES:

McMurdo and Mullins JJA and North J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of murder – where the appellant, the victim and the other participants in the relevant events were under the influence of drugs and/or alcohol – where the appellant admitted to striking the victim three times with a bed slat – where there was evidence that before the appellant struck the victim with the bed slat the appellant and/or others had punched the victim in the face causing his nose to bleed and that the victim had hit his head – where the critical issue for the defence case at trial was the cause of death – where the forensic pathologist determined the cause of death as head injuries – where the forensic pathologist conceded that there were alternative possibilities as to the mechanism that caused death – where the question for the jury was whether there was a reasonable possibility that it was an earlier incident that caused the victim’s death rather than the appellant’s striking the victim with the bed slat – where the trial judge summarised the evidence that was relevant to possible sources of injury to the victim, apart from the blows with the bed slat inflicted by the appellant – whether a miscarriage of justice occurred when the primary judge directed the jury that the forensic pathologist’s evidence as to alternative possible causes of death “was really a theoretical possibility” and that the jury had to consider the possibilities on the basis of all the evidence and what they concluded from it

McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5, considered

COUNSEL:

A W Collins for the appellant
N Rees for the respondent

SOLICITORS:

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

  1. McMURDO JA:  I agree with Mullins JA.

  2. MULLINS JA:  The appellant was convicted after trial in the Supreme Court before a jury of the murder of Mr Ferrar.

  3. There is one ground of appeal that a miscarriage of justice occurred when the learned primary judge erred in law in directing the jury that Professor Williams’ evidence as to alternative possible causes of Mr Ferrar’s death “was really a theoretical possibility”.

    Background

  4. Sturt Lodge is a four storey building in Townsville that provides budget accommodation.  The police were called around 9 pm on the evening of 2 August 2016 and found Mr Ferrar’s body in room 418A under…

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Details
AGLC
R v Novley [2022] QCA 21
Case
[2022] QCA 21
Decision Date

CaseChat Overview and Summary

In the case of R v Novley, the appellant was found guilty of the murder of Mr Ferrar and appealed against the conviction on the basis of a miscarriage of justice. The critical issue at trial was the cause of Mr Ferrar's death, with the appellant admitting to striking Mr Ferrar with a bed slat but arguing that there was a reasonable possibility that an earlier incident caused Mr Ferrar's death. The appellant's appeal focused on the primary judge's direction to the jury regarding Professor Williams' evidence as to alternative possible causes of death. The appellant argued that the primary judge's characterisation of Professor Williams' evidence as "theoretical possibilities" unfairly undermined the defence case and caused a miscarriage of justice. The appeal court was required to determine whether the primary judge's direction was a permissible judicial comment on the defence case or whether it went beyond permissible limits and unfairly undermined the defence case.

The appeal court considered the observations of Bell, Keane, Gordon and Edelman JJ in McKell v The Queen (2019) 264 CLR 307 at [35] and [48] and held that the primary judge's direction was a permissible judicial comment on the defence case. The court found that the primary judge's direction was based on the evidence presented at trial and that the characterisation of Professor Williams' evidence as "theoretical possibilities" was not unfair to the defence. The court held that the primary judge's direction did not unfairly undermine the defence case and that there was no miscarriage of justice. The appeal was dismissed.

The court held that the primary judge's direction to the jury was a permissible judicial comment on the defence case and did not unfairly undermine the defence case. The appeal was dismissed and the conviction of the appellant was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

There is one ground of appeal that a miscarriage of justice occurred when the learned primary judge erred in law in directing the jury that Professor Williams’ evidence as to alternative possible causes of Mr Ferrar’s death “was really a theoretical possibility”.Background Sturt Lodge is a four storey building in Townsville that provides budget accommodation. The police were called around 9 pm on the evening of 2 August 2016 and found Mr Ferrar’s body in room 418A under the covers on the bed. They inspected an adjacent bathroom/toilet where they found shorts stained by faeces, faeces on the toilet seat and a wooden bed slat and noticed the strong smell of bleach. The appellant who was the occupier of room 418B was questioned at the scene by an officer wearing a body worn camera. The appellant and one Mr Swan were taken into custody and subsequently questioned. On 14 October 2019 Mr Swan was convicted after trial of the manslaughter of Mr Ferrar. Before being sentenced, Mr Swan provided a statement to the prosecution and an undertaking to give evidence against the appellant. Mr Collins of counsel who appears for the appellant concedes that the case against the appellant was strong with the following features:(a)the appellant’s presence in the vicinity of room 418A at Sturt Lodge on 2 August 2016;(b)the appellant being observed cleaning blood off his hands in the communal bathroom on 2 August 2016;(c)there was evidence that the appellant cleaned a wooden bed slat with bleach;(d)evidence from Mr Swan that prior to entering room 418A, the appellant said “let’s finish the job”; and(e)evidence from Mr Swan that the appellant requested him to cover a closed-circuit television camera.The issue The critical issue for the defence case at the trial was the cause of death. The appellant admitted to striking Mr Ferrar three times with a bed slat and the question for the jury was whether there was a reasonable possibility that it was an earlier incident that caused Mr Ferrar’s death. The primary judge was directing the jury on the element of the offence of murder of whether they could be satisfied beyond reasonable doubt that the appellant killed Mr Ferrar in that he caused or substantially caused Mr Ferrar’s death. The primary judge referred to the admission of the appellant that he struck Mr Ferrar three times with a bed slat, but then referred to the issue that arose out of the cross-examination of Professor Williams which the primary judge expressed as “Is there a reasonable possibility that it was an earlier incident that was the cause of Mr Ferrar’s death?” The impugned direction was then given in the following terms by the primary judge expressly in dealing with this issue that arose out of Professor Williams’ cross-examination:“Professor Williams said he couldn’t exclude as a reasonable possibility that punches to Mr Ferrar’s face could have caused him to aspirate blood, so that he effectively drowned in his own blood, or that, because of being punched, he struck the back of his head on a hard surface, causing lethal bleeding and swelling to the brain, or that a punch itself could have caused him bleeding and swelling to the brain, or that a combination of the punch and hitting the head could have caused death. Now, Professor Williams was answering questions as to what was really a theoretical possibility, because he doesn’t know anything about what happened at Sturt Lodge that day. He didn’t see any evidence other than Mr Ferrar’s body. You have. So you’ve got to consider the possibilities on the basis of the evidence you’ve seen and what you conclude from it.”

Evidence

Evidence Before The Court

The appellant relies on the observations of Bell, Keane, Gordon and Edelman JJ in McKell v The Queen (2019) 264 CLR 307 at [35] and [48] to raise as an issue whether the primary judge went beyond permissible judicial comment on the defence case and, in particular, whether the characterisation as “theoretical possibilities” of the concessions by forensic pathologist Professor Williams (who gave evidence in the prosecution case) of alternative possible causes of death relied on by the appellant at the trial unfairly undermined the defence case and thereby caused a miscarriage of justice. The appellant’s complaint is that the primary judge referred in the impugned direction only to those parts of Professor Williams’ evidence of alternative possible causes of Mr Ferrar’s death that were relied on by the appellant at the trial and not those parts of the evidence of Professor Williams relied on by the prosecution.Summary of evidence relevant to the cause of Mr Ferrar’s death A hand drawn floor plan of the top floor of Sturt Lodge that was not to scale, was prepared by a forensic officer of the Queensland Police Service and identified the relative position of the various rooms was tendered as exhibit 2. There was a storage room between rooms 418A and 418B, a communal bathroom next to room 418B and a communal kitchen next to room 418A. Ms Butler, who is an Aboriginal woman, had been Mr Ferrar’s partner for almost four years and lived with him in room 418A as at 2 August 2016. Her evidence included the following. She and Mr Ferrar had drug and alcohol problems and had been to rehabilitation before moving into the lodge. They had been at the lodge for about a month. In the afternoon of 2 August 2016, they started to drink alcohol (cask wine and beer) in the downstairs communal area with Robert Smith and Michael Binjunda who was a distant relative. Ms Butler was drinking cask wine. Mr Ferrar had a few beers and then was drinking wine. Mr Ferrar went upstairs. His back was aching from an accident he had tree logging. Ms Butler then followed him. Mr Ferrar was putting together a better bed for them. The new bed had wooden slats that sat in the frame of the bed. After the bed had been made up and the mattress was in place, Ms Butler went back downstairs for alcohol. When Ms Butler returned, Mr Ferrar was sitting in the room with two men and it looked to her that Mr Ferrar was smoking marijuana through a bong. Ms Butler was upset at Mr Ferrar and they had an argument. They moved into their room and Ms Butler went back downstairs. When she came up next her relative, Michael, was in the corridor with Mr Ferrar and they were arguing. Ms Butler slapped Mr Ferrar with an open hand across his left cheek for being disrespectful to a member of her family. She did not notice any injuries. The guy with the tattoos (the appellant) came over her shoulder and hit Mr Ferrar in the face in the centre and “a bit of the side”. She described that he “king hit” him with his fist. Ms Butler then saw blood around Mr Ferrar’s nose and mouth area. Mr Ferrar fell back and hit the door behind him with his head and body. The appellant then said “I’m in love with your missus” and Ms Butler responded that she was not interested in him. He then said “I’m going to stab you, Brus” and repeated that about three times. Ms Butler explained that “Brus” was equivalent to “bro”. The manager of the lodge came onto the floor and told them to quieten down. Ms Butler and Mr Ferrar then went into their room. Mr Ferrar washed his face in the bathroom. Mr Ferrar had a cut on the back of his head, Ms Butler took off her singlet and put it on the cut to see if it was still bleeding and Mr Ferrar lay down, because he said he was feeling tired and sore. Ms Butler went downstairs to grab their drinks. The appellant spoke to her as she was leaving to go downstairs. She felt intoxicated and Mr Ferrar was also intoxicated. Mr Ferrar did soil himself when drinking, but that was due to his back injury. Ms Butler did not return to the fourth floor until the police came and got her.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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