Talbot v The Queen

Case [2019] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

TALBOT v THE QUEEN

[2019] SASCFC 112

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)

27 September 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

Appeal against conviction by jury in the Supreme Court.

The appellant was jointly charged with Mr Eldon Crouch with the murder of David Saunders (the deceased) on the evening of 1 February 2017 at the deceased’s residence at Hayborough. The deceased and the appellant were known to one another. It was alleged the appellant stomped on the deceased’s head at least once causing his death. When the appellant was arraigned he entered a plea of not guilty to the charge of murder but guilty to manslaughter however that plea was not accepted by the prosecution.

The prosecution case against Mr Crouch was that he was guilty of murder on the basis of joint criminal enterprise with the appellant. The jury returned verdicts of not guilty to murder and manslaughter in respect of Mr Crouch.

The key issue at trial was whether by reason of the appellant’s intoxication he was able to form the requisite intent to kill or cause grievous bodily harm. 

The grounds of appeal can be summarised into the following propositions:

•  the judge erred in admitting the appellant’s record of interview (Ground 1);

•  the fair trial of the appellant miscarried as a result of the failure of the learned trial judge to order separate trials (Ground 2);

•  the fair trial of the appellant miscarried as a result of the admission of the evidence of pre and post offence alleged acts of aggression and attitude (Grounds 4 and 4B);

•  the judge erred in directing the jury as to the permissible and impermissible use of the acts the subject of Ground 4 (Grounds 4A and 4C); and

•  the verdict is unreasonable (Ground 5).

Held, per Stanley J (Kelly and Parker JJ agreeing):

1.  The trial judge did not err in admitting the appellant’s record of interview.

2.  The trial judge did not err in failing to order the separate trial of the appellant.

3.  The appellant’s trial did not miscarry as a result of the admission of the evidence of pre and post offence alleged acts of aggression.

4.  The trial judge did not err in his directions to the jury as to the permissible and impermissible use of the pre and post offence conduct evidence.

5.  The verdict was not unreasonable having regard to the evidence.

6.  Appeal dismissed.

R v Harris (1995) 64 SASR 85; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302, distinguished.
R v Baden-Clay (2016) 258 CLR 308; Bunning v Cross (1978) 141 CLR 54; Dhanhoa v The Queen (2003) 217 CLR 1; R v Harbach (1973) 6 SASR 427; R v Glover (1987) 46 SASR 310;

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AGLC
Talbot v The Queen [2019] SASCFC 112
Case
[2019] SASCFC 112
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction recorded on a guilty plea by the appellant, Talbot, for the unlawful killing of the deceased. The factual background involved an altercation with police, followed by the appellant's presence at the deceased's residence. Later that evening, the appellant engaged in aggressive and threatening behaviour towards several individuals and a dog before returning to his own residence. The deceased was subsequently found dead at his home with blunt force trauma to the head.

The central legal issue before the Court of Appeal was whether the appellant's trial had miscarried due to the admission of evidence detailing his alleged acts of aggression and threatening behaviour both before and after the unlawful killing. The appellant argued that this evidence, including threats made to Mr Perry and Mr Martin, and his aggressive conduct towards Mr Martin and a dog, was improperly used by the prosecution to establish a specific intent to kill or inflict grievous bodily harm on the deceased. He contended that this amounted to impermissible propensity reasoning, suggesting he was a violent person and therefore likely to have formed the specific intent required for murder, contrary to section 34P of the Evidence Act.

The Court considered that the prosecution relied on these prior and subsequent acts of aggression as evidence of the appellant's specific intent at the time of the killing. The appellant argued that these incidents were disconnected from the attack on the deceased and were merely indicative of his general disposition to violence, with any probative value being outweighed by their prejudicial effect. He further submitted that the trial judge's directions to the jury, while cautioning against reasoning that the appellant was simply a "bad person," did not adequately remove the risk of impermissible propensity reasoning, particularly as the prosecution sought to use the evidence to prove specific intent. The appellant also contended that the jury should have been directed to exclude the reasonable hypothesis that his actions were those of an intoxicated individual acting out without murderous intent.

The Court dismissed the appeal, finding that the admission of the evidence of pre and post-offence acts of aggression did not cause the trial to miscarry. The Court agreed with the reasons of Stanley J, who dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

A judge of this Court granted permission to appeal on Grounds 1, 2, 4 and 5. The judge referred to this Court the question of whether permission to appeal should be granted in relation to Grounds 4A, 4B and 4C. Permission to appeal was refused in relation to Ground 3. An application for permission to appeal in respect of Ground 3 is no longer pressed.Factual background The deceased lived at 90 Mentone Road, Hayborough, with Mr Crouch. The appellant lived several hundred metres away at 46 Heysen Parade, Hayborough. The appellant and the deceased were known to each other. The appellant and Mr Crouch were friends. At approximately 2:20 p.m. on 1 February 2017, following an altercation with his son, the appellant was taken by a police car to 90 Mentone Road. His conduct towards the police officers fluctuated. His behaviour fluctuated between being aggressive and polite. The deceased was present at his residence when the police arrived with the appellant. The deceased and the appellant were observed by police to be talking and laughing together once he had alighted from the police vehicle. Mr Crouch returned home approximately one hour later. At approximately 6:00 p.m. Roger Perry, a friend of both the deceased and Mr Crouch, arrived at 90 Mentone Road. He walked around the back of the house in the direction of the rear door. He was confronted by the appellant who was inside the house. The appellant spoke to Mr Perry through the door. The appellant threatened to kill him and his family. Mr Perry left the property. Later that evening in a telephone conversation the appellant abused Mr Perry. Around 7:30 p.m. the appellant and Mr Crouch left 90 Mentone Road and walked along Sinclair Street towards the appellant’s residence. There was evidence from various witnesses that in Sinclair Street the appellant was acting in an aggressive and threatening manner towards local residents, Mr and Mrs Martin, and a dog owned by another local resident, Mr Bell. The appellant wanted to fight Mr Martin. He accused Mrs Martin of infidelity. He kicked Mr Bell’s gate so vigorously that a mounting bolt was sheared off. On the other hand, there also was evidence of him behaving in a friendly manner towards Nina Sweet. Eventually the appellant returned to his residence at 46 Heysen Parade. Later that evening he was interviewed by police. Mr Perry returned to 90 Mentone Road between about 8.30 p.m. and 8.50 p.m. Inside the house he discovered the deceased’s body. An ambulance was called. After unsuccessful attempts to resuscitate him the deceased was pronounced dead just after 9.00 p.m. A forensic pathologist, Dr John Gilbert, gave evidence that the cause of death was blunt head trauma which resulted in brain injury and substantial bleeding. This was attributed to a skull fracture that ran across the left side of the base of the deceased’s skull. Dr Gilbert was of the opinion that a single stomp of considerable force on the deceased’s head was causative of the skull fracture and that the rest of the injuries were relatively minor and easily survivable. Dr Gilbert gave evidence that due to the extent of the bruising associated with many of the deceased’s injuries, it was likely that he had survived for some time. Dr Gilbert said that he could not be precise as to the length of time, which could be “minutes to hours”.

Evidence

Evidence Before The Court

I would dismiss Ground 2.Grounds 4 and 4B: the fair trial of the appellant miscarried as a result of the admission of the evidence of pre and post offence alleged acts of aggression and attitude It is convenient to address Grounds 4 and 4B together. The prosecution relied upon a threat to kill Mr Bell’s dog, and the appellant’s verbal abuse of Mrs Martin, accusing her, in the presence of her husband, of having an affair with another man, as evidence of a specific intent to kill or inflict grievous bodily harm on the deceased. The prosecution also relied on other evidence of the appellant’s anger, aggression and threats to kill in different circumstances towards different persons unrelated to the deceased as probative of the specific intent to murder the deceased. The appellant submits that his trial miscarried as the jury was invited to use his general disposition to violence as evidence of the specific intent to murder. The appellant submits that such reasoning necessarily is prohibited by s 34P of the Evidence Act. He contends the evidence of these events was disconnected from the attack on the deceased. The appellant contends they were separate episodes with different actors, adopting the analogy of Bray CJ in R v Heidt,[36] who referred to two episodes where the accused was involved in separate scuffles with security officers and police respectively as being like “two successive scenes of a play with the curtain dropped between them”. Yet in this case the trial judge directed the jury that the acts were relevant to the appellant’s intent at the time of the unlawful killing of the deceased at 90 Mentone Road. [36] (1976) 14 SASR 574 at 580. The appellant submits that the evidence of his conduct went no higher than suggesting he was loud, agitated and had a tendency to be verbally aggressive. Any probative value this evidence had was outweighed by its prejudicial effect. He submits that to invite the jury to consider the events involving aggression and violence prior to and after the attack on the deceased, when considering the state of mind or intention of the appellant at the time he stomped on the deceased’s head, was inviting them to infer from the appellant’s general disposition to violence and aggression, the specific intent required for murder. He contends that the directions given by the trial judge that the jury was not to rely upon this evidence as a basis for reasoning that the appellant was therefore a bad person, did not remove the risk of impermissible general propensity reasoning because the specific directions given as to the use the jury could make of the evidence and the use sought by the prosecution left open that mode of reasoning. Further, the jury was not directed that if they were to rely upon the evidence of these acts to prove the specific intent for murder, they were required to exclude the reasonable hypothesis that the acts were those of an intoxicated man acting out, without intending to follow through, the threats or escalate any acts of violence to a murderous intent. The general acts of aggression were of a different nature to the unlawful assault on the deceased and, accordingly, they could not be probative of a specific intent to murder or cause grievous bodily harm except by way of a general propensity to violence.

Decision

Reasons for decision

I would dismiss Ground 5. Conclusion I would dismiss the appeal. PARKER J: I would dismiss the appeal. I agree with the reasons of Stanley J.

Ratio Decidendi

Legal Principle Established

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