R v Toma

[1999] NSWCCA 350

CITATION:	R v Toma [1999] NSWCCA 350 revised - 29/11/99
FILE NUMBER(S):	CCA 60347/98
HEARING DATE(S):	26/10/99
JUDGMENT DATE:	22 November 1999
PARTIES :	Regina v Elia Toma
JUDGMENT OF:	Grove J at 1; James J at 2; Dowd J at 52

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70023/97
LOWER COURT JUDICIAL OFFICER:	Hulme J

COUNSEL:	LMB Lamprati (Crown) IS Lloyd QC/CB Simpson (Appellant)
SOLICITORS:	SE O'Connor (Crown) John B Hajje & Associates (Appellant)
CATCHWORDS:	Criminal law and procedure - murder - causation - whether special direction on causation required - sentencing - opinion that prisoner remorseful not admissible
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60347/98

Grove J
James J
Dowd J

Monday 22 November 1999

REGINA v Elia Toma

JUDGMENT

1   GROVE J: I agree with James J

2   JAMES J: This is an appeal brought by Elia Toma against his conviction after a trial in the Supreme Court before Hulme J and a jury on a charge that on 5 September 1996 at Fairfield he murdered Fouad Eskaria (the victim’s second name is variously spelt in the court papers). The appellant was sentenced by Hulme J to a sentence of penal servitude for eighteen years, consisting of a minimum term of thirteen and a half years and an additional term of four and a half years. In the event of his appeal against conviction being unsuccessful, the appellant had applied for leave to appeal against the sentence imposed on him by Hulme J.

3   The appellant, the victim and many of the witnesses at the trial were Assyrians who had lived in Iraq and who had ultimately come to Australia. The appellant had married a woman named Shokriya, who was one of the daughters of a man named Eanoel Odisho. The victim Fouad Eskaria was married to another daughter of Mr Odisho, who gave evidence at the trial under the name Jaklin Shlemon. Another daughter of Mr Odisho named Janet was married to a man named George Hanna. In 1996 all of the three married couples, that is the appellant and Shokriya, George and Janet Hanna and the victim and Jaklin Shlemon, lived within short distances of each other at Fairfield. Mr Hanna and his wife lived in a unit on the top floor of a block of units at 73 Nelson Street, Fairfield.

4   Mr Odisho and his daughters and Fouad Eskaria and George Hanna were related by blood, as well as by marriage. The appellant, on the other hand, was not a blood relation and was to some extent treated as an outsider.

5   On Friday 30 August 1996 there was a wedding, which was attended by the appellant and a number of members of his wife’s family. After the wedding the appellant drove his father-in-law home, together with some of the other relatives. In the course of the journey an argument arose between the appellant and his father-in-law. This argument continued after they had arrived at the father-in-law’s home. That night the appellant’s wife and their children stayed with her parents and did not return to the appellant’s home. The appellant’s wife and children subsequently went to stay with George and Janet Hanna at their unit. Between 30 August and the night of 4 September the appellant did not see his wife or children.

6   A fairly large number of witnesses gave evidence in the Crown case at the trial about what they said had happened on the night of 4-5 September 1996. The evidence of the various Crown witnesses contained a number of inconsistencies. The following statement of what happened on the night of 4-5 September 1996 is taken mainly from parts of Hulme J’s remarks on sentence in which his Honour made findings about the objective facts of the offence. These parts of his Honour’s remarks were not the subject of any complaint on the hearing of the appeal.

7   On the evening of 4 September 1996 the appellant drove into the driveway of the block of units at 73 Nelson Street. He had armed himself with a knife, which had a blade about eighty-five millimetres long. All of Mr Hanna, Janet Hanna, the appellant’s wife and Jaklin Shlemon were at the Hannas’ unit. The appellant sounded the horn of his vehicle and there was an exchange of words between the appellant and his wife and some of her relatives, who came on to the balcony of the unit. The appellant spoke angrily. He said to Jaklin Shlemon that he would make her “a widow to-night”. Jaklin Shelmon told the appellant that if he wanted to fight her husband, her husband could be found at a nearby shop. The appellant’s wife agreed to go with the appellant and the appellant and his wife departed on foot from 73 Nelson Street. Mr Hanna drove to the shop where Mr Eskaria was and warned him that the appellant would be coming.

8   The appellant arrived at the shop, which was patronised by men of Assyrian extraction for drinking coffee and playing cards. At the shop the appellant sought to fight Mr Eskaria but other people present physically restrained both the appellant and Mr Eskaria. The owner of the shop told the appellant that he did not want any trouble at the shop and the appellant agreed to leave the shop. He returned to 73 Nelson Street and collected his children. He then drove home with his wife and children.

9   Subsequently Mr Eskaria and a number of the other men who had been at the shop went to the Hannas’ unit. Mr Eskaria himself became incensed against the appellant. Mr Eskaria left the unit, got a metal steering wheel lock from his car and went on foot to the backyard of a property which adjoined the property where the appellant lived. Mr Eskaria called out to the appellant. He used insulting words and challenged the appellant to fight him. Some of Mr Eskaria’s friends and then the appellant’s wife sought, unsuccessfully, to dissuade Mr Eskaria from fighting the appellant.

10   The appellant, having heard Mr Eskaria’s insulting and challenging words, armed himself with two steak knives, a rock and a table leg (in addition to the knife he already had), went into the yard of the property where he lived and jumped over a fence into the backyard, where Mr Eskaria was.

11   The appellant and Mr Eskaria evaded the grasp of persons seeking to restrain them and started to fight each other. Hulme J found that both the appellant and Mr Eskaria were aggressors. In the fight Mr Eskaria hit the appellant with the steering wheel lock. The appellant threw the rock at Mr Eskaria but missed him. In the fight the appellant used all of the three knives he had. Mr Eskaria sustained two stab wounds, one of which penetrated his heart and which led a few days later to his death. Mr Eskaria also sustained some incised wounds and lacerations.

12   In his remarks on sentence Hulme J found that he was not satisfied beyond reasonable doubt that at the time the fatal stab wound was inflicted the appellant had the intention of killing Mr Eskaria. In finding the appellant guilty of murder the jury must have been satisfied beyond reasonable doubt that the appellant at least had the intention of inflicting grievous bodily harm on Mr Eskaria.

13   At the trial the appellant did not give evidence or call evidence. He had been interviewed by the police in a long electronically recorded interview on 5 September 1996 and edited tape recordings of this interview were admitted into evidence during the Crown case and played to the jury. At the trial the appellant raised issues of voluntariness, intent, self-defence and provocation, all of which the jury resolved adversely to the appellant.

14   At the hearing of the appeal a number of the grounds of appeal against conviction which had been filed were abandoned by counsel for the appellant. The only grounds of appeal against conviction which were not abandoned were grounds 1, 2 and 5, which were as follows:-

“1. The learned trial judge erred in law by misdirecting the jury that the death could have occurred as a result of an accident.
2. The learned trial judge erred in law by removing the issue of accident from the jury.
5. The learned trial judge erred in law in his direction on provocation in that he substantially removed it from the jury”.

15   The application for leave to appeal against sentence, in the event of the appeal against conviction being dismissed, was maintained.

Grounds of Appeal 1 and 2

16   Counsel for the appellant dealt with the first and second grounds of appeal against conviction together and it is convenient to follow this course. Only one submission was put in support of the two grounds. I observe in passing that the first ground of appeal is not felicitously worded (it was not drafted by counsel who appeared for the appellant at the hearing of the appeal) but nothing turns on how the ground is worded.

17   At the trial the trial judge, as well as orally summing-up to the jury, gave the jury written directions. In both the written directions and in the oral summing-up the trial judge identified the act on which the Crown relied on the charge of murder as being “the thrusting of a knife into Mr Eskaria”. The jury were directed that the appellant should be found guilty of murder, if, but only if, the Crown established beyond reasonable doubt each of a number of ingredients, including:-

(i) That Fouad Eskaria had died.
(ii) That his death was caused by a deliberate act.
(iii) That the deliberate act was an act of the appellant.
(iv) That at the time the act was done it was done with an intention to kill or an intention to inflict grievous bodily harm.

18   It was not submitted by counsel for the appellant that any of these directions were wrong. However, it was submitted that they were inadequate.

19   Counsel then referred to a part of the oral summing-up in which his Honour said:-

“There was considerable attention given by Mr Nicholson (counsel for the appellant at the trial) to the issue of whether there was any deliberate act of the accused which caused the deceased’s death. You will remember that one of the points he made was that the entry of the knife into the deceased could have been the result of movement by the deceased, or others. He referred to, among other things, the dynamics of the fight; indeed, of any fight”.

20   After referring to what Mr Nicholson had said, the trial judge gave two further directions, which had not been included in the written directions.

21   The first of these further directions was:-

“…if a person creates a situation intended to kill and it does kill, it is no answer to a charge of murder that it caused death in a way that was, to some extent, unexpected”.

22   The second of these further directions was:-

“.. the question of cause you have to decide under paragraph (ii) of the murder directions is to be determined by applying your commonsense to the facts as you find them, appreciating that the purpose of the inquiry is to decide whether to attribute legal responsibility in a criminal matter”.

23 It was not submitted by counsel for the appellant on the appeal that either of these further directions was wrong. The first direction was taken verbatim from the joint judgment of McGarvie J and O’Bryan J in R v Demirian (1989) VR 97 at 113 and was quoted with approval in Royall v The Queen (1990) 172 CLR 378 by Mason CJ at 392, Brennan J at 400, Deane J and Dawson J at 411 and McHugh J at 452. The second direction is a standard direction on causation.

24   Although it was not submitted that any of the directions given by his Honour were wrong, it was submitted that, in the circumstances, they were inadequate. The direction which, it was submitted, his Honour should have given, and had not given, was a direction to the effect that if the jury thought it was reasonably possible that the force, which caused the stabbing motion of the knife and thereby the entry of the knife into the victim’s body so as to occasion the fatal wounding, was an intervention of a third party, then the jury would have to be satisfied beyond reasonable doubt that the appellant or a person in his position could reasonably have foreseen the intervention of the third party. It was conceded that at the trial the trial judge had not been asked to give any such direction.

25   In support of the submission that this direction should have been given, counsel referred to a passage in the judgment of Brennan J in Royall v The Queen at 398-399. In Royall the appellant had been charged with the murder of a woman who had fallen from the bathroom window of her sixth floor flat. There was evidence at the trial that she and the appellant had had a violent argument in the flat. The Crown case was that the appellant had murdered the woman in one or other of three ways, namely:-

26   (i) He had pushed her out of the window.

27   (ii) He had attacked her and she had fallen out of the window in the course of avoiding the attack.

28   (iii) Having a well founded and reasonable apprehension of life threatening violence, she had jumped from the window.

29   At pp398-399 Brennan J said inter alia:-

“The basic proposition relating to causation in homicide is that an accused’s conduct, whether by act or omission, must contribute significantly to the death of the victim. It need not be the sole, direct or immediate cause of death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken”
* * *
“Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct, if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable forseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible.”

30   It was submitted that this statement of principle was equally applicable, whether the final fatal step was taken by the victim or a third party.

31   I do not consider that the direction suggested by counsel for the appellant was a direction which the trial judge was required to give.

32   In the first place, the views expressed by Brennan J in Royall about reasonable forseeability would not appear to have been shared, or at any rate fully shared, by other members of the High Court. For example, Mason CJ said at p390:-

“In the English cases the natural consequence test has been linked to the concept of foreseeability. Because the natural consequence test inevitably invites conjecture about the likelihood of an occurrence, it is impossible to divorce completely the application of the test from the concept of foreseeability. However, in my view, to invite the jury to consider foreseeability would be more likely, at least in the majority of cases, to confuse than to clarify the issue of causation”.

33   At p412 Deane J and Dawson J in their joint judgment said:-

“On occasions forseeability may play some part in a jury’s inquiry into the cause of death but, in directing a jury, it is, for practical purposes, desirable to keep causation and intent separate as far as possible and to avoid the introduction of questions of foreseeability in relation to causation”.

34   In the second place, even if a direction of the kind suggested would sometimes be required, it was not required in the present case. In the present case, the trial judge in both his written and his oral directions unequivocally identified the act on which the Crown relied on the charge of murder as being the act of thrusting a knife into Mr Eskaria’s body so as to cause the fatal wound. The jury were directed, both orally and in writing, that they could find the appellant guilty of murder, only if they were satisfied beyond reasonable doubt that that act was a deliberate act of the appellant, done with the intent required for murder, which had caused the death of the victim. If the jury were satisfied beyond reasonable doubt of those matters, then the jury would necessarily have been satisfied that Mr Eskaria’s death had been caused directly by a deliberate act of the appellant, and not by something done by either the victim or a third party, for example some movement by the victim in the fight or some movement by a third person perhaps done in an endeavour to stop the fight or disarm the appellant. Given the way in which the act causing death was identified in the Crown case and by the trial judge, there was no final fatal step taken by a person other than the appellant and hence no need to direct the jury about whether some step taken by a person other than the appellant was reasonably foreseeable by the appellant or by someone in the appellant’s position. Given the way in which the act causing death was identified by the Crown and by the trial judge, there was no real issue about causation at all.

35   The submission made by counsel for the appellant may have had more force, if the act of the appellant relied on by the Crown had been identified (solely or in the alternative) as some act antecedent to the thrusting of a knife into the victim’s body so as to occasion the fatal wound, for example the act of holding a drawn knife close to the victim’s body. If the act of the appellant had been so identified and the knife had entered the victim’s body as a result of some movement of the victim or a third person and not as a result of a willed act of stabbing by the appellant, then issues would have arisen which might have called for further directions than those given by his Honour.

36   I would reject the first and second grounds of appeal.

Ground of Appeal 5

37   At the hearing of the appeal counsel for the appellant did not put any submission on ground 5 but he did not formally abandon the ground.

38   In the written submissions filed on behalf of the appellant a part of the summing-up was criticised in which his Honour, in the course of giving directions on provocation, said:-

“Most of you have probably lost your temper at some stage but nowhere near the extent that you were inspired to kill or inflict grievous bodily harm on the person who is the source of your irritation”.

39   It was submitted that by making this remark his Honour had “taken away” the defence of provocation from the jury.

40 I do not consider that this submission should be accepted. His Honour made the remark in the course of explaining to the jury the requirement of provocation set out in s23(2)(b) of the Crimes Act that the conduct of the deceased should have been such “as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intention to kill or to inflict grievous bodily harm upon the deceased”. After stating this requirement his Honour told the jury “you would appreciate that self control can be lost to an extent significantly less than is envisaged by those words”. His Honour then made the remark which has been criticised.

41   It is important that a trial judge, in giving directions on provocation, should make clear to the jury the extent of the loss of self control which is required for provocation and, read in its context, I consider that his Honour’s remark was unobjectionable and did not have the effect of eliminating provocation as a matter which the jury had to consider. His Honour gave careful directions on provocation, which occupy three pages of the transcript of the summing-up.

42   I would dismiss the appeal against conviction.

43   I turn to the application for leave to appeal against sentence.

44   I have already summarised the objective facts of the offence. In his remarks on sentence his Honour regarded as an aggravating circumstance that the appellant had used knives in the fight.

45   The appellant was born in Iraq in September 1966 and was accordingly thirty-one years old when he was sentenced. He had an unfortunate early life. His father died when he was five years old and his mother deserted her children. The appellant was brought up by an older brother. From the age of about twenty the appellant spent six years in a refugee camp in Iran. He went to New Zealand in 1992 and arrived in Australia in 1994. At the time he was sentenced he was married with two children. He had a good employment record. He had no previous criminal convictions. Hulme J accepted an opinion by a psychiatrist that the offence the appellant had committed was “very situationally specific” and that the risk of the appellant re-offending was low.

46   It was not suggested by counsel for the appellant that the sentence imposed by his Honour, on the facts found by his Honour, was outside the range of sentences within a proper exercise of his Honour’s sentencing discretion. What was submitted by counsel for the appellant was that Hulme J had made a specific error in the sentencing of the appellant. It was submitted that his Honour had erred when, in the proceedings on sentence, he had rejected part of a report by Beverley Spiers of an Aboriginal mental health organisation, in which Ms Spiers said that when the appellant first came to gaol he was “full of remorse for his actions”. It was submitted that the rejection of this evidence was important, because in his remarks on sentence Hulme J commented that there was nothing in the electronically recorded interview of the appellant which would persuade him that the appellant had any significant remorse for the victim’s death and his Honour clearly sentenced the appellant on the basis that there was no evidence of remorse or contrition.

47   This part of Ms Spiers’ report was objected to by the Crown Prosecutor, when the report was tendered by counsel for the appellant in the proceedings on sentence. After the objection was taken, his Honour made an order under s4 of the Evidence Act that the Evidence Act should apply to the proceedings on sentence. His Honour then upheld the objection.

48   Hulme J gave reasons for his ruling rejecting the evidence. He held that the statement that the appellant was “full of remorse for his actions” was an expression of an opinion by Ms Spiers and the basis on which Ms Spiers had formed the opinion was not disclosed in her report or elsewhere.

49   His Honour noted a submission by counsel for the appellant that the statement was admissible under s65(8) of the Evidence Act. His Honour doubted whether this was correct but said that it was unnecessary to decide the point, because, even if the statement was admissible under s65(8) of the Evidence Act, he would reject it in the exercise of his discretion under s135 of the Evidence Act (in the Court papers the relevant section of the Evidence Act is referred to as being s15 but this is obviously a transcription error). His Honour regarded the statement in the report that the appellant was full of remorse for his actions as having no probative value, in the absence of a statement by the author of the report of the basis on which the conclusion had been drawn and in the absence of any evidence from the appellant himself. The appellant did not give evidence before his Honour either at the trial or in the proceedings on sentence.

50   I do not consider that any error has been shown in his Honour’s reasoning. Apart from the reasons given by his Honour, I am of the opinion that the statement was not admissible under s65(8) of the Evidence Act. Under subs(1) of s65 the section applies, only if the person who made the out of court representation (that is Ms Spiers) was “not available” to give evidence. There was no evidence that Ms Spiers fell within any of the classes of persons who are taken to be “not available” to give evidence (see para4 of Pt2 of the Dictionary at the end of the Evidence Act).

51   I would give leave to appeal against sentence but I would dismiss the appeal against sentence.

52   DOWD J: I agree with James J.

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