R v W

[1993] QCA 135

THE COURT OF APPEAL [1993] QCA 135

SUPREME COURT OF QUEENSLAND

C.A. No. 354 of 1992

Brisbane

[R. v. W]

T H E Q U E E N

v.

W

Appellant

The President
Mr Justice Pincus

Mr Justice de Jersey

Judgment delivered the 20th day of April, 1993

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:
Murder - whether death caused by appellant's conduct - whether
septicemia unrelated to wounds inflicted by appellant or

subsequent necessary medical treatment - whether evidence so

i	nconsistent as to make conviction unsafe.
Counsel:	B. Butler for the Crown
S. Herbert Q.C. with him J. Wagner for the appellant
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the appellant

Hearing date: 8th April, 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 354 of 1992

Brisbane

[R. v. W]

T H E Q U E E N

v.

W

Appellant

JUDGMENT OF THE COURT

Delivered the 20th day of April, 1993

The appellant is a fifteen year old girl convicted of

having murdered one Dianne Scholes at Mount Isa on 4th August,
1992. The ground of the appeal is that the verdict is unsafe.

The Crown case was that on 29th June, 1992, the appellant subjected the deceased to a sustained violent physical attack. It began with an unsuccessful attempt by the appellant to stab the deceased with a knife. Then the two women struggled together. According to the evidence of the deceased's husband Cedric Scholes and Trudy Jacob, in the course of that struggle, the appellant "slammed" the deceased's head a number of times onto a linoleum covered concrete floor. Mr Scholes described how the appellant then broke a wine bottle and used the broken bottle to stab the deceased in the left side. Mr Scholes left at that stage to summon the ambulance and police. Trudy Jacob said that she also saw the appellant hit the deceased across the head with a stick.

The deceased did not die until 4th August, 1992. Following the assault on 29th June, she was given surgical treatment in both Mount Isa and Townsville, and appeared to be recovering well, but died because of septicemia on that later date.

Counsel for the appellant particularised the basis of the ground of appeal in two ways: first, that the Crown had not sufficiently excluded the possibility that the septicemia may have been attributable to an infection unrelated to the wounds inflicted by the appellant or the consequential surgery, and second, that the evidence of Cedric Scholes, which was important to the Crown case, was too inconsistent (both internally and with the evidence of other witnesses) to be reliable.
As to the first basis, while there was some evidence, notably from Dr Joiner who treated the deceased after she returned to Mount Isa, that it was difficult to know "exactly where (the infection) came from", the same doctor said that it was "highly likely" that its source was the initial kidney abdominal wound, and he described as "very rare" the "likelihood of septicemia having nothing to do with her abdominal injury". There was other medical evidence. The pathologist, Dr Ansford, listed a number of possible alternative sources for the infection, all of which, he concluded, were "associated with her treatment for the injuries that she originally sustained in June".

In light of all that evidence, taken with the evidence of the manner in which the deceased sustained her injuries, the jury was, acting reasonably, entitled to conclude that the Crown had excluded the possibility that the septicemia was attributable to an infection unrelated to the wounds inflicted by the appellant or the subsequent necessary medical treatment.

The second basis for the challenge rests on inconsistencies within the evidence of Mr Scholes, the husband of the deceased, and between his evidence and that of other witnesses. The learned trial Judge directed the jury as to the potential relevance of such inconsistencies, and there was no criticism of that part of the summing up.

Some of the inconsistencies to which we were referred concerned peripheral matters - times and state of light are examples - and plainly these should not have necessitated the rejection of Mr Scholes' evidence as unreliable.
Another different criticism was that Mr Scholes alone gave evidence of the stabbing with the bottle, although he said he "thought" Trudy was there at the time. There were however possible explanations as to why Trudy may not have seen this. That aside, Dr Ansford gave evidence of a scar on the deceased's body "consistent with a penetrating injury from a circular or semi-circular object which is irregular in its shape and is sharp", and that lent support to Mr Scholes' version.

Then again, Mr Scholes gave no evidence of having seen the appellant hit the deceased over the head, whereas Trudy claimed that the appellant did that, using a stick, and in the presence of Mr Scholes. The Judge left to the jury the possibility that hits on the head may have been a significant cause of death. The jury may have accepted Trudy's evidence about the hits, while doubting her claim that Mr Scholes was there at the time.

The jury may have considered that Mr Scholes had left by then.

The important feature, in the end, is that Mr Scholes gave a comprehensive account of the attack which, in respect of important details, was largely supported by the evidence of Trudy Jacob. The jury, acting reasonably, was entitled to take the view that the discrepancies which were present were to be expected, with the lapse of time and the rather frenzied nature of the occasion, and that, either because they concerned matters of peripheral detail, or because there was some other acceptable explanation for the discrepancy, they did not mean that the jury could not be satisfied beyond reasonable doubt of proof of the Crown case.

Having reviewed the evidence in the context of the particulars of the ground of appeal, we are of the view that the appellant has not established that the conviction is unsafe. The appeal should therefore be dismissed.