R v Whiting; ex parte Attorney-General

[1994] QCA 425

IN THE COURT OF APPEAL [1994] QCA 425

SUPREME COURT OF QUEENSLAND

Brisbane

Before Davies J.A.
McPherson J.A.
Derrington J.

[R. v. Whiting]

C.A. No. 321 of 1994

T H E Q U E E N

v.

BARRY JAMES WHITING

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

T H E Q U E E N

v.

BARRY JAMES WHITING (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

Davies J.A.

McPherson J.A. Derrington J.

Judgment delivered 24/10/94

Reasons for judgment by the Court

IN C.A. NO. 324 of 1994:
APPEAL AGAINST CONVICTION DISMISSED.
IN C.A. NO. 321 OF 1994:
APPEAL AGAINST SENTENCE ALLOWED; SENTENCE VARIED TO ONE OF
IMPRISONMENT FOR 11 YEARS. ORDER TO STATE:

(A)THE OFFENDER WAS IN CUSTODY IN RELATION TO PROCEEDINGS FOR

THIS OFFENCE, AND FOR NO OTHER REASON, BETWEEN 21 MARCH

1993 AND 14 JULY 1994;

(B)THAT PERIOD WAS 480 DAYS;

(C)THE PERIOD OF 480 DAYS IS DECLARED TO BE IMPRISONMENT ALREADY

SERVED UNDER THE SENTENCE;

(D)THE RECORDS OF THE COURT ARE TO BE NOTED TO REFLECT SUCH DECLARATION; AND

(E)THE COMMISSION IS TO BE ADVISED OF THE DECLARATION AND ITS

DETAILS.

CATCHWORDS: CRIMINAL LAW - MANSLAUGHTER - van den Bemd

direction - Whether double negative confusing.

CRIMINAL LAW - SENTENCE - Manslaughter - Wife died after attempted strangulation stimulated vagus nerve - Applicability of R. v. Green [1986] 2 Qd.R. 406 discussed - History of episodic violence to women.

Counsel:T. Carmondy for the appellant/respondent

M. Byrne Q.C. for the respondent/appellant (A-G)

Solicitors:	Legal Aid Office for the appellant/respondent
Director of Prosecutions for the respondent/appellant (A-G)

Hearing Date:16 October 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 24th day of October 1994

Barry James Whiting, who is referred to here as the appellant, was tried in the Supreme Court at Townsville for the murder of his wife. He was acquitted of murder but convicted of manslaughter and sentenced to imprisonment for 8 years. This is an appeal by him against his conviction, which was heard together with an appeal by the Attorney-General against the

inadequacy of the sentence imposed.

The only ground of appeal which this Court needs to consider concerns a portion of the summing up. The notice of appeal contains another ground, which complained of the Judge's omission in summing up to refer to or expound the express terms of s.23 of the Criminal Code; but this ground of appeal was not pursued before us. In disposing of it, it is enough to say that

there is no duty resting on a trial judge to read to the jury the provisions of any section of the Code. His or her function

is to ensure that the issues for decision at the trial are

simply but adequately presented to the jury without unnecessary emphasis on abstract legal concepts or theories. As the learned judge remarked at one stage in the course of this trial, what he had to do was to tell the jury "the Crown must prove these things", rather than give them a short lecture on the law.

To understand the other ground of appeal some reference to

the evidence and the summing up is required. The appellant did

not testify at the trial, and the principal evidence of the circumstances of the killing was derived from what was said by the specialist pathologist Dr Ansford. On post mortem

examination of the body of the victim he found marks, scratches and bruising around the face or neck which showed there had been compression of the neck. Two belts were found on or near the body either of which could have caused some of those injuries. However, Dr Ansford's opinion was that the likely mechanism of

death had not been obstruction of the airways but rather

pressure applied to the vagus nerve by means of hands or

fingers. Impulses from that nerve are communicated to the heart

and are capable of stopping it instantaneously.

It may have been because of this explanation that the jury entertained a doubt whether the applicant meant to kill his wife, leading to his acquittal of the charge of murder. The remaining question was whether the appellant was guilty of manslaughter. There are four passages in the trial judge's summing up that are relevant to the appeal:

"In the case of manslaughter, it is necessary that the Crown also satisfy you that the accused killed the deceased and that her death was not such an unlikely consequence of what he did that a reasonable person would not have foreseen it" (148:30-35).

"The Crown say that if for any reason you entertain a doubt as to the existence of either of those intentions, there would be no question but that the accused was guilty of manslaughter and the Crown says no reasonable person could fail to foresee that one of the likely results of applying the force in the [way] the evidence suggests here, if it were applied to the throat and neck of another person, would be the death of that person, and the Crown say it would be an affront to common sense to suggest otherwise; that is that anyone who applied force in such a way to the neck and throat of a person, it must follow that a likely outcome of doing so would be the death of that person. The Crown, on this aspect of the matter, say death plainly is not such an unlikely consequence of what was done that a reasonable person would not foresee it". (169:1-30).

"The defence say that when you come to consider the question of manslaughter, if you do, that you will not be satisfied that the Crown has established that death was not such an unlikely outcome of what the accused did ... that a reasonable person would not foresee it.

The defence says that if only relatively minor force is sufficient to result in the death ... that you would not necessarily conclude that a reasonable person could not have failed to foresee that death was not an unlikely result. I said to you the Crown say that it would be obvious to any reasonable person that death was not such an unlikely result from doing that that a reasonable person could not foresee it. The defence say you would not be satisfied beyond reasonable doubt about that ..." (172:1-45).

"Now, in this case, the elements of (manslaughter) would be : did the accused kill the deceased? If he did, was death such an unlikely consequence of his actions that a reasonable person would not have foreseen it?" (182:25-40; 50-55).

It is not possible to question the accuracy as a matter of

law of this part of the summing up, and the appellant does not

seek to do so. The direction is in accordance with the principle laid down in van den Bemd (1993) 70 A. Crim.R. 489,

which has since been affirmed by the High Court in R. v. van den Bemd (1994) 68 A.L.J.R. 199. The complaint made here is that

the use in one or more of the above passages of a double

negative was likely to confuse the jury rather than to clarify

the issue they had to decide.

The double negative used in the summing up stems from van

den Bemd (70 A.Crim.R. 489, 493), where the question was said to

be whether death "was such an unlikely consequence of that act

[that] an ordinary person could not have reasonably foreseen

it". In the summing up the word "reasonable" person has been

substituted for "ordinary" person; but nothing turns on that. What was said on the subject in van den Bemd is in turn derived from the way in which the matter was expressed by Gibbs J. in

Kaporonowski v. The Queen (1973) 133 C.L.R. 209, 241, in a passage which is set out in the judgment of the Court in van den Bemd (1992) 70 A.Crim.R. 489, 492.

It is desirable in directing a jury to avoid where possible

the use of a double negative, which is a form of speech favoured

by lawyers rather than by ordinary members of the public. It

would no doubt be legitimate for a judge in summing up to reformulate the critical question in affirmative terms without doing injustice to the accused. But the way in which the matter was put to the jury in the last of the four extracts from the summing up in this case appears to us to have been quite comprehensible to an ordinary juror. In that regard it is noteworthy that the jury themselves sought no redirection on or elucidation of that specific matter.

The appeal against conviction therefore fails. As to sentence, the appellant is, or at trial was, 30 years of age and evidently a boilermaker by trade with a satisfactory work record. The victim was his second wife. They had separated only a week or so before she was killed. On the occasion in question she had returned in order to have forms signed for the

transfer of a motor vehicle into her name. A few hours after

her death he was psychiatrically assessed, but was unwilling to

say what had happened. In consequence there is no evidence as to precisely what occurred other than what may be inferred

through the post mortem evidence. When assessed he was

distressed and showed signs of remorse. The marriage had been

"turbulent", and he admitted he had in the past used violence against his wife. The psychiatrist described him as having a pre-morbid anti-social personality disorder, but said he was not

suffering from a major depressive illness immediately before the
incident.

In opposing the Attorney's appeal, reliance was placed on the decision in R. v. Green [1986] 2 Qd.R. 406, as suggesting an upper sentencing limit of about six years imprisonment in the case of a "domestic" manslaughter, meaning by that a manslaughter "arising out of the frustrations engendered by close relationships". The present case demonstrates that, whatever utility such a classification might possess, in practice the line of demarcation between those and other cases

of manslaughter cannot readily be identified by means of that criterion. Because there is no evidence of what led to the killing in this case it is not possible to be sure to what

extent, if at all, it was the outcome of frustrations engendered by the matrimonial relationship. As has been said, the parties

had separated shortly before, and were living apart when the

wife was killed during an apparently brief visit connected with the transfer of the car. There is nothing to suggest that she

did anything to provoke him to kill or injure her.

The appellant has regrettably a number of convictions which were accurately described by Mr Byrne Q.C. for the Attorney as amounting to a history of episodic violence to women that has become increasingly severe on successive occasions.

As a youth of 16 years, he had, while wearing a balaclava,

threatened a priest and a woman near a church presbytery. He

menaced the woman by placing a knife under her chin and demanded the keys to a car, adding that a bomb had been placed in the

church. Three years later he was convicted of indecent dealing with and carnal knowledge of a girl of 13. In 1983 he was convicted of assault occasioning bodily harm to his first wife, hitting her with a broom and a belt, and then kicking her when

she fell down on the floor. Her offence, as he perceived it, was in refusing to take the rubbish out in the rain. In 1984, after they had separated, he punched her in the side of the head while she was sitting in the car in which she had gone to his house to collect her daughter. On that occasion he was sentenced to three months imprisonment. There are two children of the marriage, who are now living with the appellant's parents.

Then in 1985 he met a woman at a night club and gave her a

lift home. On arrival he made advances towards her, which she

escaped by locking herself in the toilet. After threatening her, he set fire to the house knowing there were two women

inside it. When charged, he absconded while on bail, but was

ultimately sentenced in 1987 to imprisonment for two years for
wilfully setting fire to a dwelling house.

Although R. v. Green may suggest some considerations that may properly be taken into account in sentencing, we do not consider that what was said in that case should continue to be viewed as imposing a definite line of demarcation between cases like this and other forms of manslaughter. Manslaughter is,

above all, an offence in which particular circumstances vary so much that it is difficult, and perhaps undesirable, to try to generalise in advance about the appropriate sentence to be

imposed. That this is so is suggested by the comparative

sentences imposed in the decisions relied on by Mr Byrne Q.C. on this appeal. They are R. v. Sutherland (C.A. 323 of 1990); R.

v. Peacock (C.A. No. 67 of 1986); R. v. Moors (C.A. 1988 of 1992); and R. v. Crouch (C.A. 37 of 1992). In all of them sentences of imprisonment of the order of 11 years were imposed after allowance had been made for periods of pre-sentence custody. In the present case, it was ordered that a period of custody of 480 days which the appellant had undergone before sentence should be declared to be imprisonment already served under the sentence that was imposed below of imprisonment for 8 years.

We consider that a sentence of that duration does not fully reflect the seriousness of the offence and its fatal consequence, or the appellant's tendency to use violence, which earlier terms of imprisonment did nothing to deter. It seems likely that in arriving at the penalty imposed, his Honour felt

constrained by the authority of R. v. Green, which we have now said should no longer be considered as laying down an upper limit in cases of manslaughter.

The appeal against conviction is dismissed. The appeal

against sentence is allowed, and the sentence is varied to one
of imprisonment for 11 years. The order will state:
(a)the offender was in custody in relation to proceedings for

this offence, and for no other reason, between 21 March

1993 and 14 July 1994;

(b)that period was 480 days;

(c)the period of 480 days is declared to be imprisonment already

served under the sentence;

(d)the records of the court are to be noted to reflect such

declaration; and

(e)the Commission is to be advised of the declaration and its

details.