R v Seminara

[2002] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Seminara [2002] QCA 131

PARTIES:

R
v
SEMINARA, Anthony Wayne

(applicant/appellant)

FILE NO/S:

CA No 23 of 2002

SC No 244 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

12 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2002

JUDGES:

McPherson JA, Byrne and Philippides JJ.
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE –MANSLAUGHTER – OTHER ACTS AND OMISSIONS RESULTING IN DEATH – where a jury were directed that the question was whether the accused was responsible for the victim’s fall ‘by his own deliberate actions’.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – where more witnesses saw accused push the victim down the stairs than did not – whether this is a matter properly taken into account by the jury.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – where the learned trial judge makes reference to ‘an ordinary person, like you and me’ – whether this direction conflicts with what was said in Stingel v The Queen (1990) 171 CLR 312.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE SUMMING UP – whether the learned trial judge had substituted the ‘reasonable man’ of the civil law of negligence for the ordinary man contemplated by s 23(1)(b) of the Criminal Code (Qld) – where the direction given was consistent with that suggested in R v Taiters.

CRIMINAL LAW – DEFENCE MATTERS – ACCIDENT – EVENT OCCURRING BY ACCIDENT OR CHANCE -  whether it is open for the jury to test foreseeability by reference to an ordinary person “like you and me” - where the learned trial judge particularised the mechanism by which the possibility of death my reasonably be expected to eventuate – whether this amounted to a error.

Kaporonovski v The Queen (1973) 133 CLR 209, applied
R v Taiters, ex p Attorney‑General [1997] 1 Qd R 333, applied
Stingel v The Queen (1990) 171 CLR 312, considered
The Queen v Falconer (1990) 171 CLR 30, considered

Criminal Code (Qld), s 23

COUNSEL:

A J Glynn SC for the applicant/appellant
BG Campbell for the respondent

SOLICITORS:

Robertson O’Gorman for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA: The appellant was convicted of manslaughter and sentenced to imprisonment for six years.  The case is a more than usually tragic one. Both the appellant and deceased were at a licensed surf club at the Gold Coast. The deceased had been drinking at the bar and was intoxicated. He became involved in an argument with staff at the bar and then began offering gratuitous insults to a group of people of whom the appellant was one. He was told to leave the premises but no action was taken to make him go. The appellant decided to remove him. He forcibly moved the deceased from the bar entrance to a short flight of steps close to the entrance and, as was alleged, pushed him down them. The vertical height of the steps was 1.26 m above ground level and they were 2.2 m in length. The deceased struck his head on the tiled floor at the bottom of the stairs and sustained a facture of the skull. He suffered a subdural haemorrhage which resulted in his death.

1. The fact that the appellant deliberately pushed the deceased down the stairs is implicit in the verdict of the jury. There was a degree of variation or inconsistency among the versions of the several witnesses who observed what had happened at the top of the stairs and testified at the trial. However, at least four of them gave evidence from which the jury would have been justified in concluding beyond reasonable doubt that the appellant had pushed or propelled the deceased from the top of the stairs causing him to fall, rather than that, as the appellant claimed in his evidence, the deceased had tripped and fallen. The first of the two amended grounds of appeal complains that the learned trial judge erred in directing the jury that, in reaching a conclusion on that issue, they should, in effect, simply “count heads”; that is, accept the version of the majority of witnesses on that question.

1. The passage in the summing up in which this error is said to have appeared is as follows:

“There was a degree of difference between the recollection of the witnesses who gave evidence of seeing the same events. That is perhaps not surprising. One possibly helpful approach, depending on your view, may be initially to ask not so much whether all or most witnesses agreed as to the precise mechanism of any propelling of the deceased down the steps, if that occurred, but rather where the preponderance of the evidence lay, the evidence that you accept. Did it have the accused responsible for that in some way by his own deliberate actions? If that were the case, then you might, depending on your approach, care to consider whether the Crown established by credible evidence to your satisfaction beyond reasonable doubt that by some particular action the accused was the cause of the deceased’s descent down the staircase that night. That is what the Crown must have done, allowing for all of the evidence, in order to justify a conviction. The Crown relies here on a pushing or perhaps a throwing down the stairs.”

1. It is clear from this that his Honour was not at fault in the respect suggested.  The fact that there were more witnesses who testified to having seen the appellant push the deceased than there were who did not was a matter that could properly be taken into account by the jury in reaching a verdict. It was, however, not decisive. His Honour’s direction catered for these considerations when he said that their initial approach might be to ask “not so much whether all or most witnesses agreed as to the precise mechanism of any propelling of the deceased down the steps if that occurred, but rather where the preponderance of evidence lay, the evidence you accept”.

1. It is evidently the use of the expression “preponderance of evidence” that has given rise to the appellant’s impression that his Honour might have misdirected the jury in the manner suggested. But even if, considered in isolation, it were capable of being understood in that way, the context in which it appears in the summing up makes it clear that it was not what the learned judge was saying. It was not simply the preponderance of evidence they were asked to consider, but the preponderance of evidence “that you accept”. What is more, the question, as the jury were instructed was whether that evidence showed that the accused was responsible for the deceased’s falling down the steps “by his own deliberate actions”. His Honour was there directing the jury to decide whether it was the appellant’s own voluntary or deliberate act that had, within the meaning of s 23(1)(a) of the Code, brought about the deceased’s fall. On that issue, the prosecution carried the onus of proof: Falconer v The Queen (1970) 171 CLR 30. The Crown had, the jury were distinctly told, to establish “by credible evidence” to their satisfaction beyond reasonable doubt that “by some particular action the accused was the cause of the deceased’s descent down the staircase that night”.

1. Taken as a whole, as it should be, the summing on this point is not open to the criticism directed at it. It is noteworthy that at the trial there was no request for a redirection on the matter now raised; and Mr Glynn SC, who appeared for the appellant on the appeal, confessed that he did not feel able to take this amended ground of appeal beyond what was said about it in the appellant’s written outline.  In my opinion, the complaint that is made about it has not been sustained on appeal.

1. The second of the two grounds in the amended appeal concerns what was formerly known as the second “limb” of s 23, and is now s 23(1)(b) of the Criminal Code. It excuses an accused person from criminal responsibility for an “event” that occurs “by accident”. It has now been settled by a series of decisions going back to the reasons of Gibbs J in Kaporonovski v The Queen (1973) 133 CLR 209, that, in a context like the present, the “event” refers to the death of the deceased, which, given the verdict of the jury in this case, was found to be the outcome or result of the appellant’s voluntary or deliberate act of pushing the deceased from the top of the stairs. See R v Taiters, ex p Attorney‑General [1997] 1 Qd R 333, 335. That decision also establishes, authoritatively so far as this Court is concerned, that for the accused to be found guilty of manslaughter, the Crown is bound to establish that an “ordinary” person in his position “would reasonably have foreseen that event” [meaning in this case the death of the deceased] “as a possible outcome”: see R v Taiters ex p Attorney‑General [1997] 1 Qd R 333, 338. Otherwise, the appellant here would have been entitled to be acquitted on the basis that the death of the deceased amounted to an accident in terms of s 23(1)(b) of the Code. None of the complications introduced by s 23(1A) arose here.

1. What therefore was required in this case was a direction to the effect that the appellant might be found guilty of manslaughter if an ordinary person in his position would reasonably have foreseen the death of the deceased as a possible outcome of the appellant’s act in pushing him down the stairs. His Honour having instructed the jury in these terms, they later returned to court with a request for a redirection “whether an ordinary person would have been aware of the results of their action”. That was, of course, the essential question which it was their function as the jury to determine in relation to this aspect of the charge of manslaughter. With reference to it, his Honour said:

“Now, if you get to that point, you’d have to ask whether an ordinary person in the position of this accused would reasonably have foreseen the death as a possible outcome or result of what he did. And in relation to that issue, you’d have regard to the sorts of factors I mentioned to you earlier in the day, that is, the dimensions and make-up of the staircase; the steepness, I suppose; the hard surface of the edge of the steps; carpet elsewhere; the hard surface at the foot of the steps; the distance covered by the body; the apparent state of intoxication of the deceased; and your view on the evidence of the degree of any force with which the deceased was propelled to the bottom. Now, you look at those sorts of issues - you may look at those sort of issues in your assessment of whether an ordinary person - you or me - in the position of the accused that night looking at this situation would see, reasonably, in advance, as it were, would reasonably foresee the death as a possible outcome or a result of what he did.”

In that case, if you - if an ordinary person would not reasonably have foreseen death as a possible outcome in that sense, then the killing is excused. For our purposes here, if you are left with a reasonable doubt whether an ordinary person who caused the deceased’s descent over this staircase to the tiled area at the bottom that night would reasonably have foreseen or realised that the deceased might die as a result of the consequent injuries, then you would be bound to find the accused not guilty, and it is in relation to that that you would take account naturally of the sorts of features I mentioned to you before.”

1. The jury did not reach their verdict immediately, but returned at the end of the day with a further request, this time that the summing up be gone through again. As it was now late, the trial was adjourned to the following morning, when the judge repeated the substance of his summing up. In the course of doing so, he said:

“The Crown must establish beyond reasonable doubt that an ordinary person, like you and me, in the position of the accused would reasonably have realised that propelling the deceased down the staircase could possibly result in injuries leading to death. So, put yourself in the position of the accused at the top of that staircase that night. You’re about to push the deceased down the staircase. You pause and you ask yourself: being reasonable about this, what could happen? Is it reasonably possible that Mr Smith could fracture his skull in a serious way, imperilling this brain and his life?

You look down at this moment; you note the steepness of the steps; you note their construction: the railings, the hard tiled area at the foot of them; the doors; the distance he’d cover. You look at Mr Smith and the level of his apparent intoxication and you consider whether he’d have any real power to protect himself possibly as he fell, and then you add in the level of force you’re inclined to apply. Now, being reasonable about the matter, taking those sorts of things into account in your consideration mentally, you ask: is a serious head injury and the possibility of death, even if a few days later, a possible outcome?

1. The crux of the appellant’s case before us is that, in this, his Honour was wrong in two respects. One was in his reference to “an ordinary person, like you and me”, which, it was submitted conflicted with what was said in Stingel v The Queen (1990) 171 CLR 312; another was that his Honour had substituted the “reasonable man” of the civil law of negligence for the ordinary man contemplated by s 23(1)(b) of the Code as interpreted in the authorities culminating in R v Taiters.  The two points are closely related, and it is convenient to consider them together.

1. The question in Stingel v The Queen arose out of a consideration of s 160(2) of the Criminal Code of Tasmania, which, in providing for provocation as a matter going in reduction of the offence of murder to manslaughter, speaks of a wrongful act or insult of such a nature as to be “sufficient to deprive an ordinary person of the power of self-control”. There are, of course, similar provisions in the Criminal Codes of Queensland, Western Australia and other jurisdictions. In the course of discussing the meaning of those words in Stingel v The Queen, their Honours said (171 CLR 312, 327):

“It has been suggested that, under a provision such as s 160(2), the jury should ‘be instructed to put themselves, as the embodiment of the ordinary person, in the accuser’s shoes’ for the purpose of determining the possible effect of the wrongful act or insult upon the power of self-control of the ordinary person: see, e.g. Reg v Hill ([1986] 1 SCR, at p 347). While such an instruction may not involve any misdirection or error when read in the context of a particular summing up, it seems to us that it should be avoided. True it is that the jury viewed collectively, can be seen as representing the ordinary or average member of the public. To instruct the jury to put themselves in the shoes of the accused for the purpose of determining whether the wrongful act or insult was of such a nature as to deprive an ordinary person of the power of self-control could, however, involve the danger that it might be construed by an individual juror as an invitation to substitute himself or herself, with his or her individual strengths and weaknesses, for the hypothetical ordinary person. The result could be to displace the objective standard by the particular juror’s subjective view of his or her personal power of self-control regardless of whether it be greater or less than that, which should be attributed to a hypothetical ordinary person. If that occurred, it would be but a short step to the position where a defence of provocation would be sustained by a particular juror only if that juror were prepared to concede that he or she would have been guilty of the crime of manslaughter if placed in the situation of the accused. That would involve a mistaken and unduly harsh operation of s 160(2)’s objective test.”

1. Having made that statement, their Honours went on (at 328):

“The function of the ‘ordinary person’ in s 160(2) should not be confused with the role of the ‘reasonable man’ in the law of negligence: see, eg Moffa ((1997) 138 CLR, at p 613); Reg v Webb ((1977) 16 SASR 309, at p. 313). Before ‘provocation becomes an operative factor’ in a murder trial, the prosecution must have satisfied the jury beyond reasonable doubt that murder, provocation apart, had been committed by the accused’ (per Barwick CJ, Johnson (1976) 136 CLR, at p 633). To make what the reasonable man of the law of negligence would have done in the circumstances the controlling standard of what might constitute a defence of provocation to a charge of murder would in effect be to abolish the defence since it is all but impossible to envisage circumstances in which a wrongful act or insult would so provoke the circumspect and careful reasonable man of the law of negligence that, not acting in self-defence, he would kill his neighbour in circumstances which would, but for the provocation, be murder.”

From this it is clear that the learned High Court Justices were directing their remarks specifically to the issue of provocation. In that context, a direction to a jury to apply the standard of a reasonable person in deciding whether a particular wrongful act or insult constituted provocation was necessarily erroneous because the circumspect and careful reasonable man of the law of negligence would, as their Honours recognised, by definition never be so provoked as to kill his neighbour. Moreover, to substitute the individual juror, with his or her own individual strengths and weaknesses, for the hypothetical “ordinary person” predicated by the law of provocation attracted the risk of erroneously replacing that objective standard by the particular juror’s subjective view of his or her own personal power of self-control, which, for the reasons given, “would involve a mistaken and unduly harsh operation” of the objective test prescribed in s 160(2) of the Tasmanian Code.

1. The impugned direction in the present case was not concerned with the question of whether or not the deceased’s conduct would have provoked a person of ordinary sensibility and self-control into pushing the deceased down the stairs. The question being addressed by his Honour at this stage of the summing up was whether the prosecution had succeeded in establishing beyond reasonable doubt that an ordinary person in the position of the accused would reasonably have realised that propelling the deceased down the staircase could possibly result in injuries leading to death. Those are the words used in the introductory passage quoted from the direction, and they accord with what was said in R v Taiters, ex p Attorney‑General [1997] 1 Qd R 333, 338. His Honour did not say that, in determining whether the death of the deceased was accidental within the meaning of s 23(1)(b), the criterion to be applied was whether the possibility of that event was foreseeable by a reasonable man, but whether it was reasonably foreseeable by an ordinary man.

1. The question for the jury was not whether the reasonable man of the civil law of negligence would have done what the appellant did, but whether, in pushing the deceased down the stairs, an ordinary person would reasonably have foreseen the possibility that the death of the deceased might result from doing so. Because capacity to foresee depends on an individual’s personal knowledge and experience, it will no doubt vary to some extent from one individual to another; but it is precisely because such variations do exist that 12 jurors randomly drawn from different walks of life are invited to use their common knowledge and experience in deciding questions of fact like that in issue here. All knowledge is empirical, and, apart from their own individual knowledge and experience, jurors have no source or standard of reference by which to divine what an ordinary person would foresee as a possible consequence of conduct like that of the appellant in the present case.

1. It was therefore legitimate for his Honour to direct the jury to test foreseeability by reference to an ordinary person “like you and me”. Unlike the person under consideration in Stingel v The Queen, his Honour was concerned not with someone acting under provocation, but with an ordinary person whose rational faculties were unimpaired by the passion of the moment.  The direction given was nevertheless criticised on the ground that it invited the jury to consider the sequence of events as it happened, and to do so in a way that was abstracted from realities of the action as it happened.

“So, put yourself in the position of the accused at the top of the staircase that night. You’re about to push the deceased down the staircase. You pause and ask yourself: being reasonable about this, what could happen? Is it reasonably possible that Mr Smith [the deceased] could fracture his skull in this serious way, imperilling his brain and his life?”

1. It was submitted that to approach the matter in this way was to invite the jury to apply the ordinary person test in a manner that was artificial, and, again, that savoured of the reasonable man of the civil law of negligence. I am, however, unable to view the direction in that light. It was obviously designed to respond to the jury’s specific request for assistance on “whether an ordinary person would have been aware of the results of their actions”. That, as I have said, was the substantial issue for the jury to determine by using their own knowledge and experience of the world. His Honour was plainly not suggesting that the ordinary person would or should in fact pause and ask himself the question suggested. It was simply a means, and perhaps the only feasible means, of focusing the attention of the jury precisely on the legal point at issue, which was (to repeat it once more) whether an ordinary person in the position of the appellant would reasonably have foreseen the possibility of death from his act of pushing the deceased down the stairs. To clarify the issue even further, his Honour particularised the mechanism by which the possibility of death might reasonably be expected to eventuate; that is, by the deceased’s fracturing his skull in a serious way and so imperilling his brain and his life. Unless there is to be a prohibition on investigating the reasoning process by which an ordinary person might be expected to become aware of the possible results of his actions, there does not seem to me to be any other obvious way in which the legal concept of reasonable foreseeability can be explained to a jury when they specifically ask to be directed on that question.

1. There can surely be nothing wrong in law with that approach to the matter. In my opinion, the directions that were given by the trial judge were not at fault in either of the respects complained of in the amended grounds of appeal. It follows that the appeal against conviction must be dismissed. The application for leave to appeal against sentence was not pursued in this Court and has already been dismissed.

1. BYRNE J: I agree with the reasons of McPherson JA and the order proposed.

1. PHILIPPIDES J: I agree with the reasons of McPherson JA and with the order proposed.