R v Wales

[1992] QCA 478

COURT OF APPEAL [1992] QCA 478

PINCUS JA AMBROSE J MOYNIHAN J

CA No 199 of 1992

THE QUEEN

v.

CHRISTOPHER SHANE WALES	Appellant
BRISBANE
..DATE 07/09/92 JUDGMENT

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PINCUS JA: This is an appeal against conviction. The

appellant was convicted of murder on 9 June 1992 and the Crown
case, which was apparently accepted by the jury, was that the
appellant, in the course of a dispute with his de facto wife,
assaulted her on a number of occasions, causing her death.

The outline of argument indicated that one ground to be

pursued was that the Judge might not have summed up adequately

on the question of accident. At the hearing before us Mr Nase for the appellant indicated that Ground 1 was to be abandoned.

The only ground which was taken was a suggestion that

evidence which was given by a pathologist was inadmissible and

two passages are referred to. One is as follows. This is in

examination-in-chief of the pathologist.

“Just taking the head injuries on their own could
they be explained by a fall?-- Some could, but not
taking in total I consider not. There is evidence
of repeated blows and they are spaced. I think it

is unlikely.

HIS HONOUR: When you say there is evidence of
repeated blows, what evidence are you referring to
there?-- I am referring to the bruising on the
right-hand side of the head principally, but there
is also bruising on the left, Your Honour. There is
also bruising around the right eye, bruising and
laceration above the left eye, bruising on the chin,
and splitting of the lower lip.

MR MEREDITH: And you mentioned an injury to the back?-- There is also the laceration on the back of the head.”

Mr Nase submitted that the expression "blows" was

inappropriate and that the doctor should have conveyed the

notion which she was attempting to explain by using different

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language such as that that there was evidence consistent with

repeated blows. Mr Nase contended that the evidence in the form in which it was given amounted to trespassing upon the

function of the jury and that the doctor should have confined
herself to matters within her field of expertise.

Now, the second part which is objected to is contained in the following passage:

"In terms of likelihood, what is the most likely cause of death - cause of blunt trauma, I should say?-- Repeated blows to the head with the fist or

possibly the foot and a banging of the head against

the ground.

In relation to the chest and abdomen injuries?--
Again, blunt trauma with the fist and/or foot. The
abdomen, principally the foot.

MR WALTERS (counsel for the accused): Your Honour, I object. Blunt trauma is one thing, but to start being able to tie it down to feet and things like this is another thing altogether.

HIS HONOUR: Well, it seems to me it is admissible,
Mr Walters. It is a matter of the weight to be

attached to it."

It should be added that, in the course of cross-examination,

shortly after that passage, Mr Walters asked:

"Why do you use this term 'stomping'? Why don't you

just say a punch or something like that?-- Well, I

have to say I understand your objection. It's
perhaps a slang term, but it is a fairly commonly

used term. It can indicate a fist or a foot blow."

Shortly after that Mr Walters asked:

“Why say something like stomping when it could be a
number of punches or some other - being struck with
a blunt object or something like that?-- The
striking of the abdomen with a blunt object
generally doesn't produce these characteristic

changes."

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It appears that the appellant was observed assaulting his

victim with a number of blows and there was some evidence that
she fell, and a suggestion by the defence that the fall might

have been accidental. It is, of course, quite plain that the

injuries which were suffered were caused by quite a number of
blows. The injuries were severe and they included substantial
internal injuries. The doctor gave evidence and it is indeed
obvious that there was a considerable amount of force applied
in causing the injuries; some of them were in the nature of

compression injuries.

The first passage which counsel referred to, and which I read

out, is at the most a slip of the tongue. Instead of saying there is evidence consistent with repeated blows, the doctor

said there was evidence of repeated blows. Assuming that that
was an improper mode of expression, it appears to me that it
could not possibly have deprived the appellant of a chance of
acquittal. It is indeed a relatively trivial matter, and no

objection was taken at the time.

The second passage which I have referred to raises the point

more clearly, because the doctor said, in effect, that the
injuries were likely to have been caused by repeated blows to

the head with the fist or the foot, and the banging of the

head against the ground. The objection which was taken was

that, in effect, that was too specific, and the doctor could

not tie it down, as was said, to the feet and things like

that. The vice of the evidence as seen by counsel for the

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defence appears, to some extent, from the passage which I

read, in cross-examination. That is, it was complained in
cross-examination that the evidence of stomping was
inappropriate because the injuries might have been caused by

being struck by a blunt object or something of the sort.

In my view, the evidence should have been given in the form

which Mr Nase has suggested, that is, it would have been

better had the doctor explained that the evidence was

consistent with blows with a foot or a fist rather than saying

that that was the most likely cause. However, again it does

not appear to me, having regard to the nature of the issues at

the trial, that the variation in expression from the correct

one was of any significance at all.

It must have seemed obvious enough to the jury that the victim was repeatedly assaulted in some fashion. The counsel for the appellant argued before us that the matter could have had some significance in discriminating between manslaughter and murder - that is, that the precise cause of the injuries could have

had a bearing upon the jury's choice of a conviction of murder
rather than one of manslaughter, because that might have been
related to the question of the appellant's intent. While

there is something in that, it seems to me to be extremely

thin. The jury, no doubt, had to make up their own minds what

happened. The doctor gave her opinion as to what was likely

to have happened and there was, we are told, some eye-witness

evidence. My view is that assuming, as I think one should, in

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favour of the appellant that there was an error made, it was a

relatively trifling one which could not by any stretch of the imagination have had any significant impact upon the outcome.

I would therefore hold that, assuming the complaints to be

well-founded, they would not by any means be of sufficient
strength to upset the conviction that there was no miscarriage

of justice. In my opinion, the appeal should be dismissed.

AMBROSE J: I agree.

MOYNIHAN J: I agree.

PINCUS JA: The order of the Court is appeal against conviction

dismissed.

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