The State of Western Australia v Derschaw - [2010] WASC 378

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- DERSCHAW [2010] WASC 378

CORAM: EM HEENAN J

HEARD: 8 NOVEMBER 2010

DELIVERED : 8 NOVEMBER 2010

PUBLISHED : 9 DECEMBER 2010

FILE NO/S: INS 52 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DWAINE WILLIAM DERSCHAW
Accused

Catchwords:

Criminal law and procedure - Trial by judge and jury - Charges of murder, manslaughter and unlawful assault causing death - Circumstantial evidence - Submission that accused has no case to answer

Legislation:

Criminal Code, s 279

Result:

No case to answer submission dismissed
Accused later acquitted by verdicts of jury

Category: B

Representation:

Counsel:

Prosecution : Ms L E Christian
Accused: Ms L B Black & Ms K J King

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Kate King Legal Pty Ltd

Case(s) referred to in judgment(s):

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482; (1998) 103 A Crim R 312
R v Bilick & Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452
R v Hillier [2007] HCA 13; (2007) 233 ALR 634
The State of Western Australia v Montani [2007] WASCA 259
The State of Western Australia v Tilbrook [2007] WASCA 4

EM HEENAN J: At the close of the case for the prosecution at this trial, counsel for the accused, Dwaine William Derschaw, has submitted that the evidence does not disclose any case against him which he is required to answer, and has moved for an order that the indictment be dismissed. I have heard submissions in the absence of the jury in support of the application and in opposition to it by counsel for the prosecution. Having heard those submissions, it is now necessary that I should give my decision on the application.
The accused, Dwaine William Derschaw, is charged on indictment that on 22 December 2009, at Bulgarra, a suburb of the town of Karratha, he murdered Anthony James Lockyer contrary to s 279 of the Criminal Code (WA). It is acknowledged by the prosecution, and accepted by counsel for the accused, that on that indictment, in lieu of a conviction for murder, the accused could be convicted of manslaughter, or of the offence of unlawful assault causing death.
The submission which has been raised addresses each of the possible offences for which a conviction might have been open on the indictment. In short, the submission is that the evidence for the prosecution is not capable of sustaining any verdict by the jury that the accused unlawfully caused the death of the deceased, whether by murder, manslaughter, or unlawful assault causing death. The basis for the submission is that, upon the evidence as has been led for the prosecution, the evidence is not capable of satisfying a jury beyond reasonable doubt that the deceased died from an unlawful assault by the accused, as opposed to his death being caused by some other means for which the accused is not criminally responsible. I will advert to those possibilities in more detail in a moment.
For the moment, I should remind myself, as I do, of the principles which apply to a charge at a criminal trial when a judge sitting with a jury must deal with a submission of no case to answer. I have been helpfully referred to a number of authorities, including The State of Western Australia v Montani [2007] WASCA 259, a decision of the Court of Appeal comprising Martin CJ and Pullin and Miller JJA; also to The State of Western Australia v Tilbrook [2007] WASCA 4, a decision of that court comprising Steytler P and Roberts‑Smith and Buss JJA; to the well‑known decision of the Supreme Court of South Australia in R v Bilick & Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452; and to the decision of the High Court of Australia in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, each of which contains detailed considerations of the many other authorities.
I go immediately to the judgment in The State of Western Australia v Montani [5], where the court referred to many of the cases from which the trial judge extracted the following passage from the judgment in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489 ‑ 480; (1998) 103 A Crim R 312:
[W]here a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused.
Also in Montani the court addressed the position in a case involving circumstantial evidence, and referred to the decision of King CJ in R v Bilick & Starke (467), already mentioned, in support of the proposition that in such a case the test to be applied to determine whether there is a case to answer is:
On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
In Montani, the court then made reference to the decision of the High Court of Australia in R v Hillier [2007] HCA 13; (2007) 233 ALR 634, which emphasised the need to consider the circumstantial evidence in its entirety, rather than in a piecemeal fashion, looking at evidence of matters in isolation from all other evidence.
Then at [10] in Montani, their Honours referred to the trial judge's summary of the principles which had been deduced from the authorities as being:
Distilling the principles derived from the cases I have cited, a judge's role when considering if there is a case to answer is to assume the existence of all facts upon which there is evidence. The judge then draws all reasonable inferences from those facts adverse to the accused and in favour of the prosecution. If, having undertaken the exercise, the inference of guilt is reasonably capable of being drawn to a standard beyond reasonable doubt, it is the duty of the judge to allow the case to proceed.
If a reasonable inference of guilt cannot be drawn because there is a defect in the evidence preventing the drawing of a reasonable evidence of guilt to the criminal standard of proof, it is the duty of the judge to find the accused not guilty.
In the drawing of an inference, only reasoned and logical deductions are permissible; speculation and conjecture are not.
Turning to the decision of the Court of Appeal in The State of Western Australia v Tilbrook, at [29] of the reasons, in the judgment of Steytler P, with whom the other members of the court agreed, there is the passage:
It is common cause between the parties that where a 'no case to answer' submission is made on behalf of an accused, the trial judge is required to ask whether the evidence of the State, taken at its highest, is capable of establishing the guilt of the accused beyond a reasonable doubt.
After references to Bilick and Morrison v Kiwi Electrix Pty Ltd, which I have already cited, the learned President then referred to a passage in the judgment of King CJ in Bilick that was then applied in Morrison, and which provides:
The same test is to be applied in deciding the submission of no case to answer in a case depending upon circumstantial evidence, as in a case depending upon direct evidence, although the matter of its application will be different. The question to be asked by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt… Where the case is a circumstantial or partly circumstantial case, and therefore depends upon inferences, the question may be expanded so that it becomes; on the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution is accurate, and, on the further assumption that all inferences most favourable to the prosecution which are reasonably open are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused?
I respectfully adopt those principles which I shall now apply to the case presently before me.
The case for the prosecution is that the deceased, Anthony James Lockyer, died as a result of an unlawful assault, or assaults, by the accused at, or near, the place which they were living in Karratha, unit 10, 1924 Ridley Street, Bulgarra. They had been living there for some time. Both men were known to one another and the evidence is that the body of the deceased was found dead on the driveway of that unit in the early hours of the morning of 23 December 2009. Police and ambulance were called and on their arrival at the scene, no sign of life was found.
There is evidence from a number of sources that at this time, that is, when the police and ambulance were called and arrived, which was either shortly before or just after 1.00 am on 23 December 2009, the body of the deceased was cold to the touch; that he was not breathing; that his eyes were unresponsive to light and unreacting; that there was no pulse which could be found in the neck or the arm; and that electrical attempts to detect heart activity administered by the ambulance crew were all negative.
The case for the prosecution is that earlier in the evening the accused had assaulted the deceased inside unit 10, 1924 Ridley Street, and punched him perhaps several times. The evidence at the present state of the case, so far as it consists of admissions from the accused, is that there was a punch or punches to the deceased, but only to his head, and certainly not to any other part of his body.
Subsequent forensic examinations found spots of blood, which have been identified as coming from the deceased, on a bedspread in one of the bedrooms in the unit and on the floor of that bedroom. There were also spots of blood found on the driveway outside the unit, near where the body was found. The post‑mortem examination has revealed quite a lot of information about the deceased. It includes a number of lacerations to areas of the head, the nose, the eyebrow, the right ear, the lip, and bleeding from a nostril, which would be consistent with a punch or punches to the head.
The evidence about the cause of death, which has been given after detailed post‑mortem examination and subsequent neuropathological examination of the deceased's brain, is that the cause of death was due to abdominal and chest injuries in a man with acute alcohol intoxication. The level of alcohol intoxication was determined by post‑mortem toxicological analysis, and it has been put at 0.318% of alcohol in the blood and 0.470% of alcohol in the urine, although Dr Cadden, the forensic pathologist, relies on the blood alcohol level to indicate the degree of intoxication. In his view, it was a high level of alcohol concentration, and had potential relevance to the cause of death.
There was, as I have already said, a post‑mortem neuropathological examination of the brain of the deceased. A report on that has been prepared, and evidence has been given from the neuropathologist, Dr Fabian. It was her opinion that there were pathological signs indicating that there had been a mild brain injury, but that this must have occurred at least seven hours before death, and up to four days before death. It was her evidence that any mild brain injury or concussion, suffered more recently than seven hours before death, would not be detectable by the forensic methodology which was available to her analysis.
It follows from this that the prosecution does not assert, and that the evidence does not support, any conclusion that assault to the head of the deceased caused his death.
In relation to the actual causes of death identified by Dr Cadden, I have already described these as being abdominal injuries, chest injuries and the effect of alcohol. In his evidence, which was very thorough and comprehensive, Dr Cadden had described the abdominal injuries as comprising two large tears in the tissues which secure the large bowel; a laceration to the liver at the junction of the lobes; and damage to the duodenum resulting in splitting. All these injuries accounted for blood within the intestinal cavity, which was discovered on the post‑mortem examination.
Dr Cadden described the chest injuries as comprising rib fractures; fractures of the right ribs two to five inclusive and nine, and the left ribs five to nine inclusive, with associated blood in the intercostal musculature. It was his final opinion that it was a combination of the abdominal and chest injuries, in a man with acute alcohol intoxication, with the effects which that would have in impairing respiration, which produced death.
I have already indicated that the post‑mortem pathology did not support a conclusion that head injury contributed to death. That was also confirmed by Dr Cadden. I should add that the blood found in the abdomen on post‑mortem internal examination included about 750 ml or more of blood found on the surface of the intestines, and blood was also found around the right kidney and around the right adrenal gland.
Now, I have already referred to evidence consisting of admissions attributed to the accused that he was engaged in an assault with the deceased prior to his death inside the house, and that he punched him to the head region. There is this evidence of the accused. When I say 'the evidence of the accused', I refer to statements by the accused to the police and to others to that effect. There is evidence from a witness who was inside the house and who was apprehensive that something was going to happen, heard noises coming from the bedroom and moved children out.
There is other evidence that the accused made statements to a colleague that he had 'fixed the problem', which in the context was a reference to the deceased, and had 'left him lying half‑dead on the roadway', and there is evidence from a police officer to whom the accused said while at the police station words to the effect that the deceased had attempted to rape some person using the accused's name, 'so I clouted him', and that it had been at his daughter's funeral that he heard that the deceased was using his name.
Again, later at the same place and occasion, the accused said to a police officer, 'White bloke on Ridley. I asked him what he was doing. He said he was trying to find Billy Derschaw. I said, "I'm Billy Derschaw" - 'because he raped my wife.' I said, "I'm Billy Derschaw. I didn't rape your wife. I know who did." I then went off to find that cunt. He's been using my name to rape women. You know when I first found out? At my daughter's funeral.'
That evidence is capable of supporting a conclusion that the accused was angry with the deceased for attempting to impersonate him in molesting women, and that as a response he assaulted him.
It is at this point necessary to say something about timing. Some time close to 10.30 pm, or perhaps 10.35 pm, the accused visited a neighbour's house, Mr Harrison's house, and created what Harrison took to be a disturbance, resulting in Harrison calling the police. Police arrived quite soon, probably some time between 10.35 and 10.45, by which time Derschaw had left, but he was seen later in the vicinity walking, and apparently affected by alcohol. It was at this visit, and in the course of this conversation, that the accused is said to have said that, with reference to the deceased, 'I dealt with the problem. I left him half‑dead back up the road', or words to that effect.
Counsel for the accused lays stress on this, pointing out that the case for the prosecution is, or must be regarded as being, that the fatal injuries or injury to the deceased were caused before this episode. That is, before about 10.35 pm.
There is other evidence from a witness in a nearby unit that he saw the deceased lying on his back on the ground outside the unit at about 10.50 pm, and then again at about 11.45 pm, and that he was not moving.
Counsel for the accused submits that this witness put the location of the deceased's body, when so observed, as being on the roadway rather than on the driveway to the unit where he was later found dead but, for present purposes, I think that I should treat the evidence as capable of supporting a finding that the deceased was at, or near, the position in which he was later found dead.
The case for the prosecution, therefore, is that because of the real or imagined grievance which the accused had with the deceased over the alleged episode of impersonation, he assaulted the deceased and put him out of the house. The evidence of him being put out of the house is rather tenuous, but there is clear evidence that the body of the deceased was found near to a pile of clothes and an upturned suitcase, which would be capable of supporting the inference that he had been put out of the house, although not necessarily so.
The evidence as I have so far described it leaves to the jury to find, as a matter of inference, that the injuries which the deceased suffered and which caused his death and which comprised the abdominal and chest injuries described by Dr Cadden which I have identified, and not the head injury, were caused by assault occasioning blunt force to the abdomen and chest of the deceased by the accused, and that this force must have been applied before about 10.35 pm. That is, before the visit to the Harrison unit.
In the course of a recorded conversation on the mobile telephone of Police Constable Muir, who attended unit 10, 1924 Ridley Street when called, that is, at about 1.00 am, or a little after, on 23 December 2009, there are words to the effect by the accused that he, in some way or another, attempted cardio pulmonary resuscitation, CPR, on the deceased, and revived him, at least partially.
There is no direct evidence to this effect. The evidence comes from statements made by the accused in a lengthy and somewhat discursive and uncoordinated series of conversations which have been admitted into evidence on the basis that they contain admissions against interest, but it is a mixed statement because there are a number of passages which may assist the accused and which are admissible as part of the whole.
Upon the basis of this evidence, and some acknowledgements from the attending police officers in cross‑examination that the accused made gestures to the effect that he had attempted some procedures which would seem to be CPR procedures on the body of the deceased, it is submitted for the accused that the fatal injuries, that is, the chest and abdominal injuries, may have been caused by excessive force in these attempts at CPR. On this approach, they were undertaken by a strong, heavily‑built man with little proper experience or training in CPR, and that unintentionally and, as it were, by accident, these attempts resulted in fractures of the ribs of the deceased and that the pressure and fractures caused the damage by abrasion or laceration or splitting to the underlying tissues as described by Dr Cadden.
The submission is that this is a possible explanation for the fatal injuries, one which is not consistent with criminal responsibility by the accused, and which is inconsistent with the case advanced by the prosecution, namely, that a more extensive assault has been established.
This, therefore, requires some further examination of the evidence of the pathologist, Dr Cadden. He was examined in‑chief, and cross‑examined, and re‑examined extensively on these and associated subjects. The passages in the evidence of Dr Cadden can be found from pages 283 ‑ 356 of the transcript, perhaps the most significant pages being pages 315, 322, 344 ‑ 345 and 354.

I am mindful of the fact that no final conclusions can be drawn at this stage because there is nothing in the evidence of Dr Cadden to address this situation, and that Dr Cadden's essential opinion is that the fatal injuries were caused by the application, on one or more occasions, of significant blunt force to the abdomen and chest areas.
He posited a number of ways in which the blunt force might have produced these injuries; a heavy fall against some object which protruded into the abdomen, and therefore compressed with force the underlying tissues is one possibility. As to that, there is no evidence that the deceased fell upon any such object or was found in the proximity of any object which would account for that possibility, and it seems to me that that potential method for the application of blunt force should, at least at this stage, be put aside as conjecture or speculation.
Another possibility is that the blunt force was such as had been inflicted by one or more solid punches to the abdomen or to the chest area, that it might have been done by 'a kick or a knee to the guts', as Dr Cadden described, and he had a similar opinion as to the fractures of the ribs on both the left and right side.
Dr Cadden was satisfied that all of those injuries, both the chest injuries and the three sets of abdominal injuries, had been inflicted when the deceased was still alive because of associated bleeding and haemorrhage which would not have been expected, or would not have been expected to the extent found, had the injuries occurred post‑mortem. This is of some significance because there is evidence that after the body was found cold to the touch, without breathing, without pulse and with unresponsive eyes at about 1.00 am on 23 December 2009, there were several attempts at CPR, one by a neighbour, a second set by the attending police, and that it is possible that in those attempts, particularly those of the police, some dislocation of the ribs might have been produced. But, as I say, the evidence is that the injuries which were regarded by Dr Cadden as fatal occurred before the death of the deceased.
The submission for the accused is that the prosecution has not excluded as a reasonable possibility that the death might have been caused by the attempts at CPR by the accused before death at some unspecified time.
Dr Cadden was asked on numerous occasions, and in numerous ways, as to whether or not the injuries which he found, including the injuries to the tissues, might have been caused by unduly heavy CPR, perhaps by an inexperienced person. I think it fair to take his evidence as a whole as indicating that, at first, he was disinclined to accept that as a significant possibility, pointing out that the injuries were in different locations and that more than one application of force would be expected, that the injuries were not in a location where one would ordinarily apply the force needed for CPR, and that the sites of the fractures to the ribs in particular were not characteristic of fractures associated with CPR, although it was possible that they might have been caused that way.
As his cross‑examination continued, Dr Cadden, I think, became perceptibly less positive about these matters, and eventually conceded that it was possible that one application of force could have produced the injuries to the left ribs and to the underlying abdominal structures, the three structures which I have mentioned, and he might even be regarded as having gone as far as acknowledging that one sufficiently strong application of force might have produced all the injuries.
When asked whether a continuous process of heavy CPR, that is, many compressions extended over some time, might produce such consequences, he acknowledged the obvious; namely, that the more applications of force there were, the higher the probability that it was possible that one or more of them might have caused the fracture or fractures described, and the underlying abdominal injuries.
It is essentially on the strength of that evidence that the submission is now advanced that the possibility that the fatal injuries were caused by this process of attempted CPR by the accused is inconsistent with the case put for the prosecution, and that it would not be possible for a jury properly directed to conclude beyond reasonable doubt that these injuries were caused by some independent unlawful assault.
The weight and significance to be placed on the evidence of Dr Cadden is, I think, very much a matter for judgment. I consider that Dr Cadden acknowledged the possibility of the fatal injuries being sustained by a misapplied process of CPR as a possibility, but not one which he favoured or himself adopted. His acknowledgement that it was a possibility does not, I think, go further than that. It certainly raises an issue in this case as to what was the mechanism of the fatal injuries, but I consider that on the evidence as it stands, it would be open to the jury to conclude that notwithstanding this possibility, the fatal injuries were caused by some form of earlier unlawful assault or assaults. For that reason, I consider that the accused does have a case to answer and that this application should be dismissed and the trial proceed.
I add another dimension, and it is to point out that the manner in which this submission has been argued assumes, if only silently, that the fatal injury must have been caused either by some species of assault along the lines alleged by the prosecution, or by the misapplied CPR by the accused, and that because the latter is a possibility, there could be no justification for a conclusion beyond reasonable doubt that the former has been proved. I do not consider that the matter is as clear cut as that. What is not stated or immediately apparent, and which seems to me to be an open question remaining in the case, is why the accused might have thought it necessary to attempt CPR on the deceased, if that in fact is what he did. To attempt CPR on an apparently unconscious person implies that there was reason to believe that he was seriously ill and in danger of death, and that begs the question of how the deceased person came to be in that state. He could of course have collapsed, or passed out through excessive alcohol intake, or become unconscious or groggy because of some earlier assault.
The point is that something or someone caused illness or injury to such an extent as to prompt the CPR, and that could very well have been an assault along the lines alleged by the prosecution. If that in fact were the case, and the assault which led to the attempt to apply CPR itself had fatal characteristics which had the potential to cause death, directly or indirectly, its effect would not be displaced by subsequent well-intentioned but misguided attempts at CPR.
That remains an open question in the case but, for these reasons, I refuse the application to dismiss the prosecution on the grounds of no case to answer.