R v Sekrst

Case [2016] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SEKRST

[2016] SASCFC 127

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Bampton)

30 November 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION

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

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DIRECTIONS TO JURY

Appeal against conviction of murder.

On 11 August 2016, the appellant and the deceased were detained in the same room of the Morier Ward of Noarlunga Hospital pursuant to the Mental Health Act 2009 (SA). On 12 August 2014, at approximately 1:00am the appellant was found by a nurse standing with his foot on the neck of the deceased yet without applying any apparent force.

When found, the appellant said that he had heard the deceased make a noise and that he had attempted to resuscitate the deceased using his foot. Upon and immediately after being found, the appellant spoke to two nurses but did not say anything about fighting with the deceased to defend himself. Evidence at trial revealed that the deceased had injuries consistent with being struck as well as warding off blows.

At trial, the appellant gave evidence that the deceased attacked him during the night. The appellant also gave evidence that he and the deceased fought, during which the deceased threatened to kill him. For about two minutes, the appellant held the deceased around his neck as hard as he could and only let go after the deceased stopped moving.

On 29 February 2016, a jury found the appellant guilty of murder.

The appellant appeals the conviction on five grounds:

1. that the trial Judge erred in failing to direct the jury as to the impermissible use of the appellant’s out of court lies to the nursing staff;

2. that the trial Judge erred as a matter of law in failing to adequately or at all apply legal discretions to the issues in the case, the evidence and the defence case;

3. that the trial Judge erred as a matter of law in failing to direct the jury as to the permissible and impermissible use of the accused’s mental condition and the deceased’s mental condition and history of violence;

4. that the trial Judge erred as a matter of law in relation to her Honour’s directions in relation to proof of the specific intent for murder;

5. that the trial Judge erred as a matter of law in relation to her directions as to self-defence as required by section 15 of…

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R v Sekrst [2016] SASCFC 127
Case
[2016] SASCFC 127
Decision Date

CaseChat Overview and Summary

The case of R v Sekrst concerned an appeal against a conviction for murder. The appellant, Sekrst, was convicted of murder following a trial. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Vanstone and Bampton JJ.

The central legal issues before the Full Court revolved around the adequacy of the trial judge's directions to the jury. Specifically, the appeal raised questions concerning the directions on the appellant's mental condition and its bearing on the *mens rea* for murder, the onus of proof regarding the elements of the offence, and the treatment of evidence of lies told by the appellant. The appellant also contended that there had been a miscarriage of justice due to these alleged misdirections or non-directions.

The Court's reasoning differed on the grounds of appeal. Kourakis CJ concluded that the trial judge had not erred in law regarding the directions on the onus of proof, and would have applied the proviso if an isolated sentence was considered an error. However, his Honour found that the directions concerning the appellant's mental condition and its impact on the *mens rea* for murder were inadequate, leading him to allow the appeal. Vanstone J agreed with the Chief Justice on the grounds concerning the onus of proof and the treatment of lies, but differed on the adequacy of the directions regarding the appellant's mental condition, finding them to be apt. Despite this difference, Vanstone J also allowed the appeal.

Both Kourakis CJ and Vanstone J would have allowed the appeal and remitted the matter for retrial.

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 It is necessary first to explain a little more of Dr Gilbert’s evidence on the cause of death. Dr Gilbert explained that there are three or four internal mechanisms that may operate to cause the death of a person from neck compression:·The first internal mechanism is an interruption of the carotid arteries. This mechanism prevents the brain from receiving oxygen.·The second internal mechanism is an interruption of the jugular vein. This mechanism prevents blood leaving the brain, thereby preventing further blood from being resupplied to the brain.·The third mechanism involves the tongue being pushed backwards to block off the back of the throat through compression of the trachea. This mechanism could be a factor in a strangulation case, but could also be fatal in itself.·The fourth mechanism involves compression of the pressure sensors located in the upper part of the carotid artery underneath the jaw. The pressure could cause impulses to be sent to the brain which could then be interpreted by the brain as an increase in blood pressure, causing the brain to send a signal to the heart to slow down and stop. This is described as a theoretical possibility but rare in practice. Dr Gilbert explained that cutting off oxygenated blood to the brain results in unconsciousness after 10 to 15 seconds. A person may be able to regain consciousness if blood supply is re-established after about 30 seconds, but will die if the blood supply is cut off for three to four minutes. Dr Gilbert was unable to say definitively which of the four internal mechanisms, or combination of the four, caused the deceased’s death. He testified that compression applied to the deceased’s neck was more likely to have been for ‘minutes’ and that it would be unusual for the application of the fourth internal mechanism ‘to actually cause the heart to stop completely’. Dr Gilbert was not able to identify which external mechanism was applied because there were no distinctive marks on the neck. A hand, foot, ligature, or a forearm could all have been responsible for the neck compression. Dr Gilbert gave evidence that injuries to the neck muscles and thyroid cartilage of the deceased suggested that substantial force was applied to the right side of the neck. Dr Gilbert opined that the observations he made were more consistent with a ‘bar hold’ than holding the neck in the crook of the arm. A bar hold was unlikely to cause the fourth internal mechanism. Dr Michael Warhurst, the deceased’s treating psychiatrist, gave evidence that he saw the deceased in 2011 and diagnosed that he suffered from chronic paranoid schizophrenia. The deceased’s delusional beliefs included that his mother was an imposter and that he was under surveillance by the American government. Dr Warhurst testified that the deceased was never violent or aggressive in the time that he saw him. He had seen him become agitated, but never felt threatened by him. The deceased’s psychiatric condition improved in the following three years to late July 2014. However, in mid-2014, Dr Warhurst was informed that the deceased was talking about leaving South Australia in a way which suggested a re-emergence of his delusions. Dr Warhurst visited the deceased at his home on 28 July 2014 and found him to be agitated. The deceased admitted to Dr Warhurst that he had not taken his medication for several days. Dr Warhurst detained the deceased because he thought his desire to move interstate would place him at risk because he would lose his family and medical supports in South Australia. The deceased was taken to the Noarlunga Hospital in an ambulance without incident.

Decision

Reasons for decision

The Judge has not erred in law in the totality of the directions on the onus of proof. If, contrary to that conclusion, the isolated sentence on which the appellant relies is to be regarded as an error of law, I would apply the proviso, because the jury must have well understood the onus of proof from the summing up as a whole.Conclusion I would allow the appeal and remit the matter for retrial. VANSTONE J: I would allow the appeal.I have had the benefit of reading the reasons of the Chief Justice. His Honour has found that grounds 3 (in part) and 5 are not made out. I respectfully agree with those reasons. However, I differ from the reasons of the Chief Justice in relation to the issue of directions on specific intent and, in relation to the treatment of lies, I prefer to provide my own reasons.Specific intent The Chief Justice would allow the appeal on the grounds which concern the directions given on the topic of the appellant’s mental condition and its bearing on the mens rea for murder. This is raised in grounds 2, 3 (in part) and 4. I do not agree that the directions given were inadequate in the way put forward. In my view, the directions were apt to alert the jury to the relevant legal and factual issues. There was no complaint about them at trial by Senior Counsel then acting for the appellant. Having said that, I think this was a difficult case because such evidence as there was of the appellant’s mental condition raised a question of his mental competence to commit the offence charged. The evidence about the appellant’s mental state came both from prosecution witnesses and from the appellant. Dr Giannakoureas, a psychiatrist, saw the appellant within 24 hours of his detainment on 8 August 2014 under the Mental Health Act 2009 (SA). He found the appellant to be vague, perplexed and lacking a grasp of his circumstances. The doctor was unable to obtain a lucid history from him as to what had led to his admission. He gave “concrete, superficial” answers. He did not have a grasp of his situation. Dr Giannakoureas “suspected” the appellant was “maybe suffering from a psychotic illness” and this, together with information about the appellant’s psychiatric history, led him to confirm the detention order. That provisional opinion was based on the doctor’s observations on that day (as outlined already), the “collateral history” received from the appellant’s family, and on his behaviour in the Emergency Department prior to the witness seeing him. Dr Giannakoureas saw the appellant again on 12 August, after the death of Mr Barton. On this occasion, he found him to be “surprisingly vague and almost unconcerned”. The jury had a general explanation of the nature of psychosis and psychotic symptoms by Dr Warhurst, in the context of his role as the treating psychiatrist of Mr Barton. An enrolled nurse, “N”, was the appellant’s one-on-one nurse while he was in the Emergency Department of the Noarlunga Hospital on 10 August 2014. She described the appellant as withdrawn and difficult to engage. She said he lay on his bed facing the wall and would pull his hood over his eyes, or cover his head with a blanket. She noticed that, while lying on his bed, his foot would twitch in a repetitive movement.

Ratio Decidendi

Legal Principle Established

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