R v Strbak

Case [2019] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION:

R v Strbak [2019] QCA 42

PARTIES:

R
v
STRBAK, Heidi
(applicant)

FILE NO/S:

CA No 6 of 2018
SC No 1643 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – [2017] QSC 299 (Applegarth J)

DELIVERED ON:

12 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2018

JUDGES:

Fraser and McMurdo JJA and Crow J

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MANSLAUGHTER – EVIDENCE – where the applicant pleaded guilty to manslaughter – where the manslaughter was of the applicant’s four year old son – where the particular basis for the applicant’s criminal responsibility was disputed – where the applicant admitted guilt on the basis that she failed to provide the necessaries of life by failing to seek medical treatment for her son – where the applicant did not admit that she applied the blunt force trauma that caused her son’s death but the primary judge found so – where the case that the applicant inflicted the fatal injuries was entirely circumstantial – where there was also circumstantial evidence that another inflicted the fatal injuries – where that other person gave a s 13A statement – whether the primary judge erred by making a finding of fact that the applicant inflicted the fatal injuries – whether the primary judge erred by reasoning that the probability of the case against the applicant was affected by the relative probability of the case against another person – whether the primary judge erred by failing to approach the evidence of a s 13A witness with the required degree of circumspection

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the ground of appeal is that the sentencing judge exercised the sentencing discretion on a factual basis which was incorrect – whether the Court of Appeal must not interfere with a primary judge’s finding of fact unless the Court concludes that the finding was not reasonably open or that it was the product of legal error – whether the Court of Appeal may interfere with a primary judge’s finding of fact where the Court concludes that the primary judge made a mistake with regard to a particular factual finding

Criminal Code (Qld), s 668D, s 668E

Baxter v The Queen (2007) 173 A Crim R 284; [2007] NSWCCA 237, considered
Clarke v The Queen (2015) 254 A Crim R 150; [2015] NSWCCA 232, considered
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, considered
House v The King (1936) 55 CLR 499; [1936] HCA 40, considered
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Continue reading R v Strbak

Sign in free to access the full text

Details
AGLC
R v Strbak [2019] QCA 42
Case
[2019] QCA 42
Decision Date

CaseChat Overview and Summary

In the case of R v Strbak, the applicant, Heidi Strbak, was convicted of manslaughter of her four-year-old son, Tyrell. The primary judge found Strbak guilty based on her failure to provide the necessaries of life, specifically by not seeking medical treatment for her son. However, Strbak did not admit to inflicting the blunt force trauma that led to her son's death, although the primary judge concluded that she was responsible for the fatal injuries. The case against Strbak was entirely circumstantial, with evidence suggesting that another person, Scown, may have inflicted the fatal injuries. Scown provided a s 13A statement, which the primary judge considered in his reasoning. The appeal against sentence raised issues concerning the primary judge's findings of fact, specifically whether the judge erred in finding that Strbak inflicted the fatal injuries, and whether the judge appropriately considered the evidence from Scown.

The court addressed the issue of whether the primary judge erred in making a finding of fact that Strbak inflicted the fatal injuries. The court held that the primary judge did not misuse his advantage of seeing and hearing the evidence, and that there was no evident error in the judge's conclusion. The court also considered whether the primary judge erred in reasoning that the probability of the case against Strbak was affected by the relative probability of the case against Scown. The court found that the primary judge was correct in considering the alternative possibility that Scown inflicted the fatal injuries, as it was a realistic possibility. Furthermore, the court concluded that the primary judge did not fail to approach Scown's evidence with the required degree of circumspection, given Scown's interest as a s 13A witness.

Based on the court's reasoning, the appeal against sentence was dismissed. The primary judge's findings of fact were not erroneous, and the conclusion was not so glaringly improbable as to suggest a misuse of the judge's advantage. There was no basis for interfering with the exercise of the sentencing discretion. Consequently, the application for leave to appeal was refused.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons that follow, I conclude that even on the less restrictive view favoured by Basten JA, the applicant has failed to demonstrate an error by the judge in making the critical finding, and consequently has failed to establish the only relevant ground of appeal.The evidence Many of the facts were agreed and the judge was provided with a schedule setting out what was agreed and what was contested. As the sentencing judge did, I will annex the schedule to this judgment, which will avoid the need for a more comprehensive statement of the relevant facts and circumstances. The contested facts were those which are shaded in the schedule. As the judge noted, there was no dispute that certain injuries to Tyrell’s abdomen caused leakage of the contents of the stomach and bleeding into the abdominal cavity, and that by a combination of peritonitis and haemorrhage there was resultant shock and death.[36] The judge accepted the preponderance of the expert medical opinion, which was that the fatal injuries were the result of two separate applications of blunt force trauma, with the second application causing a fresh haemorrhage. He found that the second trauma probably occurred within hours of death, whereas the first occurred at least a day, and probably between 24 and 48 hours prior to death.[37] There is no criticism of this part of the judge’s reasoning.[36]Reasons [5].[37]Reasons [7]-[9]. Scown’s evidence proved, to the judge’s satisfaction, many of the contested facts, such as those in paragraphs 17, 19, 25, 29, 38, 39, 40, 41, 42, 45, 49, 55 and 59 of the schedule of agreed and contested facts. Scown gave evidence in which he denied that he inflicted the fatal injuries, which the judge ultimately accepted.[38][38]Reasons [242]. Scown did not testify that he saw the applicant inflicting what must have been the fatal injuries. But he said he observed, in the few days before Tyrell’s death, some physical aggression by the applicant towards her son which were the subject of contested facts 38 and 39. Soon after the events in question, Scown told police that on the Friday or Saturday night (the 22nd or 23rd of May), Tyrell was slapped in the face by the applicant leaving a bruise to his face. His evidence before the sentencing judge was that this happened when the applicant and Tyrell were sitting at the kitchen table and Tyrell either vomited or was keeping food in his mouth. Although this evidence was challenged in cross-examination, the judge accepted it and Scown’s further evidence that the bruise was the reason given by the applicant for not taking Tyrell to hospital. The incident which was the subject of contested fact 39, described by the judge as the “frogmarching incident”,[39] was found to have occurred a day or two before that slapping incident. The judge accepted Scown’s testimony that the applicant lost her temper with Tyrell, grabbed him by the wrist and frogmarched him to his room, at the same time slapping him in the area of his ribs.[40][39]Reasons [167].[40]Reasons [208].

Decision

Reasons for decision

But in this case there was evidence from the applicant by her statements to police. The applicant declined to confirm that evidence from the witness box and be subjected to the testing of that evidence by cross-examination. This was not a case where the judge was asked to draw an inference more readily which was adverse to the applicant from the fact that there was no evidence from her. Rather, the judge’s reasoning was that her evidence should be given less weight than it would be given if tested by cross-examination.[73] Even on a trial, it is not improper for a jury to be instructed that the accused’s exculpatory statements made out of court, if tendered by the prosecution, might be given less weight for the reasons that they were not sworn testimony and were given out of court. In Mule v The Queen,[74] the High Court said that there was no derogation from the accused’s right to silence for the trial judge to point out that the out of court statements in that case were made in the course of a police interview and were not on oath.[75] This is not a case which calls for a reconsideration of R v Miller.[73]Reasons [141].[74][2005] HCA 49; (2005) 79 ALJR 1573 at 1578-1579 [20]-[23].[75]See also R v Bagley [2014] QCA 271 [39]-[42].Conclusions and order For these reasons, neither the first nor the third grounds of appeal is established. The judge’s reasoning contains no evident error. Nor is the conclusion so glaringly improbable, that it must be thought that the judge has misused the advantage of hearing and seeing the evidence as it was given. Consequently, there is no demonstrated error in the judge’s conclusion and the second ground of appeal must be rejected. There is no basis for interfering with the exercise of the sentencing discretion. I would order that the application for leave to appeal be refused. CROW J: I have had the advantage of reading the reasons of McMurdo JA. I agree with his Honour’s analysis and with the conclusions reached. I add some observations of my own. Tyrell Cobb was born on 25 February 2005. Tyrell was the son of Jason Cobb and the applicant, Ms Heidi Strbak. In 2008, Mr Cobb and the applicant separated and the applicant moved to the Gold Coast with Tyrell. On 16 May 2009, the applicant and Tyrell moved into a unit at Biggera Waters along with Mr Scown. At 10.25 pm on Sunday 29 May 2009, Tyrell was declared deceased at the Gold Coast Hospital. Doctors at the Hospital noted numerous bruises “all over” Tyrell’s body.[76][76]Reasons [7]. Six medical experts provided evidence as to the nature, extent and timing of the injuries inflicted upon Tyrell. Medical evidence showed that Tyrell had suffered from 81 injuries as set out in the second schedule, pages 64 to 67 of the primary judgement.[77] The injuries which caused Tyrell’s death were identified as:1.injury 77, near transection of the small intestine (only 1 cm of the 4 cm circumference attached from the location of the injury, being about 8 cm from the antrum of the stomach); and2.injury 78 (a 3 cm tear of the mesentery of the small intestine, the location of that injury being near its attachment to the small intestine (lies directly above the ruptured portion of the duodenum)).[77]Reasons pages 64 – 67.

Ratio Decidendi

Legal Principle Established

In the appeal against sentence in that case, there was a factual question whether the gun by which the appellant killed the deceased had been brought to the scene by the appellant or by the deceased, the relevance of which was that the moral culpability of the appellant would have been greater if he had brought the gun than if the offences had been wholly spontaneous.[70] Under the relevant legislation in New South Wales, it was for the prosecution to prove any aggravating factor beyond reasonable doubt, and it was for the offender to prove any mitigating factor on the balance of probabilities. The trial judge in that case found that although it was likely that the accused had brought the gun to the scene of the killing, she could not be satisfied of that fact beyond reasonable doubt. Consequently, neither the prosecution nor the accused proved, to the requisite standard (which differed between them), that the gun was or was not brought to the scene by the accused. French CJ, Bell, Keane and Nettle JJ said:[71]“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where the offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of which is proved and leave to one side what is not proved to the requisite standard.”[70][2015] HCA 29; (2015) 256 CLR 47 at 69 [63].[71][2015] HCA 29; (2015) 256 CLR 47 at 72 [70].Consideration In the present case, the prosecution was required to prove the critical fact on the balance of probabilities. This was the standard of proof although, according to s 132C, the judge was to have regard to the consequences of the finding for the applicant. There is no criticism of the judge excluding, as realistic possibilities, that the fatal injuries were the result of accidents or that they were inflicted by some third person. And although the judge did consider (and rejected) the possibility that the two episodes of blunt force trauma may not have been inflicted by the same person, neither side submitted to the judge or in this Court that this was a real possibility. Consequently, the judge was correct in reasoning that the probability of the case against the applicant was affected by the relative probability of the only realistic alternative, which was that Scown inflicted the fatal injuries. There is the further consideration that the judge saw and heard Scown’s testimony, an advantage not enjoyed by this Court. I am not persuaded that the judge misused that advantage or that, more particularly, he failed to approach Scown’s evidence with the required degree of circumspection having regard to Scown’s interest as a s 13A witness. The judge conducted a review of the case ahead of the hearing itself, in which he granted counsel access to documents which had been placed in an envelope according to the practice direction for the operation of s 13A. Further, after Mr Scown had given evidence, the judge made a point of placing it on the record that counsel had been given access to that material. There was an extensive discussion which followed, in which the judge expressed disappointment with some media criticism of Scown’s sentence because it had not revealed the impact of s 13A. The applicant’s counsel reminded the judge that in cross-examination, he had raised with Scown the fact that he had provided a statement for the purposes of obtaining a reduced sentence.