Von DEUTSCHBURG v The Queen
[2013] WASCA 57
VON DEUTSCHBURG -v- THE QUEEN [2013] WASCA 57
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 57 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:113/2012 | 5 FEBRUARY 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 1/03/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction for murder set aside Judgment of acquittal entered | ||
| A | |||
| PDF Version |
| Parties: | CHRIS VON DEUTSCHBURG (Formerly known as CHRISTIAN WILHELM MICHAEL) THE QUEEN |
Catchwords: | Criminal law Appellant convicted after trial of murder Royal prerogative of mercy Petition in relation to the appellant referred by the Attorney General to the Court of Appeal Fresh and new evidence Whether a miscarriage of justice at the trial Whether the conviction was unreasonable or cannot be supported |
Legislation: | Sentencing Act 1995 (WA), s 140 |
Case References: | Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VON DEUTSCHBURG -v- THE QUEEN [2013] WASCA 57 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : WALLACE J
File No : INS 109 of 1983
Catchwords:
Criminal law - Appellant convicted after trial of murder - Royal prerogative of mercy - Petition in relation to the appellant referred by the Attorney General to
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the Court of Appeal - Fresh and new evidence - Whether a miscarriage of justice at the trial - Whether the conviction was unreasonable or cannot be supported
Legislation:
Sentencing Act 1995 (WA), s 140
Result:
Appeal allowed
Conviction for murder set aside
Judgment of acquittal entered
Category: A
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: By an indictment dated 5 December 1983, filed in the Supreme Court, the appellant was charged with one count of burglary and one count of murder.
3 On 14 December 1983, he pleaded guilty to the count of burglary and not guilty to the count of murder.
4 On 16 December 1983, after a trial in the Supreme Court before Wallace J and a jury, the appellant was found guilty of murder. He was sentenced to life imprisonment with hard labour. In early 1990, he was released on parole.
5 On 28 April 2012, a petition for the exercise of the Royal Prerogative of Mercy in relation to the appellant was referred by the Attorney General to this court, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA), for the whole case to be heard and determined as if it were an appeal by the appellant against the conviction for murder.
6 When making the referral, the Attorney General did not specify, pursuant to s 140(1a) of the Sentencing Act, the grounds of appeal to be heard and determined by the court. However, the appellant filed grounds of appeal.
7 Counsel for the respondent conceded that the appeal should be allowed, the conviction for murder set aside and a judgment of acquittal entered. In my opinion, the concession was properly made.
The prosecution case at trial
8 In the early hours of 1 June 1983, the appellant burgled the home of Stavros Kakulas. Mr Kakulas was aged 86. The appellant searched for money that he believed was hidden in the home. After failing to find any money, the appellant woke up and assaulted Mr Kakulas, who suffered bruising to his arm, chest and right eye and four fractured ribs.
9 At about 6.00 pm on 1 June 1983 (that is, nearly 18 hours after the assault), Mr Kakulas was examined by a general medical practitioner, who admitted him to Hollywood Repatriation Hospital.
10 During the morning of 8 June 1983, Mr Kakulas' condition deteriorated rapidly. His doctors were concerned that he was suffering from internal bleeding. An urgent endoscopy was arranged, but before this happened he died at 2.45 pm on that day.
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11 On 9 June 1983, a forensic pathologist, Dr Donald Hainsworth, performed an autopsy. He concluded that the direct cause of death was internal bleeding from an acute duodenal ulcer. Dr Hainsworth was of the view that the ulcer was caused directly by the trauma of the appellant's assault upon Mr Kakulas on 1 June 1983.
12 At trial, the prosecutor told the jury, in his opening address, that the appellant was guilty of murder because:
(a) He directly or indirectly caused Mr Kakulas' death and he therefore killed him (ts 65).
(b) When the appellant killed Mr Kakulas he intended to do him some grievous bodily harm (s 279(1) of the Criminal Code (WA)), alternatively Mr Kakulas' death was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life (s 279(2) of the Code) (ts 67).
13 The prosecutor also told the jury, in his opening address, that the appellant's assault upon Mr Kakulas caused his death. The prosecutor elaborated:
(a) the appellant's assault resulted in Mr Kakulas sustaining certain injuries, namely 'the fracture of the ribs and the associated soft tissue injury' (ts 61);
(b) these injuries caused Mr Kakulas to suffer 'physical and psychological stress' (ts 61) and this, in turn, caused him to suffer from a duodenal ulcer; and
(c) the ulcer then directly caused Mr Kakulas' death because it was the source of bleeding into his intestine (ts 61, 65).
14 This part of the prosecution case was supported only by evidence from Dr Hainsworth. The critical evidence of Dr Hainsworth was set out in a letter dated 30 June 1983 which he wrote to the police:
The direct cause of his death was bleeding into the intestine from acute duodenal ulceration - ie a 'stress ulcer'. This ulcer had arisen after the injuries and was the result of the deceased having undergone physical & (psychological) stress. (original emphasis)
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The defence case at trial
15 The appellant gave sworn evidence at trial. He admitted breaking into Mr Kakulas' home and looking for money. When he found Mr Kakulas in bed he woke him and held him down. When Mr Kakulas broke free, the appellant hit him a few times to the arm. He denied hitting him in the ribs or the eye. The appellant admitted stealing money and a radio (ts 152 - 155).
16 Defence counsel cross-examined the medical practitioners called by the prosecution, including Dr Hainsworth. No medical evidence was adduced by the defence in relation to whether the appellant had caused Mr Kakulas' death in the manner alleged by the prosecution.
17 The trial judge summed up the defence case in relation to the expert evidence, as follows:
Then the accused says he did not cause the physical injuries to the deceased's flank which brought about his death and, furthermore, if one views the duodenal ulcer as having contributed to the cause of death, then that is but the medical opinion of one doctor and you are free to disagree with that opinion if, in your view, the evidence does not support it (ts 194).
The trial judge's summing up
18 The trial judge directed the jury in his summing up, relevantly, as follows:
(a) The jury had to be satisfied that the appellant caused Mr Kakulas' death (ts 193).
(b) The prosecution case was that Mr Kakulas' death was caused by 'the duodenal ulcer in the duodenum and this arose because of the stress occasioned the old man by the actions of the accused in awakening him in the early hours of the morning and applying such force as you deduce from the facts' (ts 188).
(c) As to the medical evidence from Dr Hainsworth:
The medical evidence from Dr Hainsworth, and I agree that it is an opinion which the doctor has given---is that this form of duodenal ulcer was occasioned by the stress of the attack. The microscopic examination of the organ of the deceased did not disclose any scarring which would have evidenced the pre-existence of such an ulcer, and the doctor's evidence was that the ulcer was of a couple of days duration (ts 188 - 189).
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The appellant's grounds of appeal
19 The appellant relies on two grounds of appeal.
20 Ground 1 alleges that there was a miscarriage of justice at the trial 'having regard to fresh (and/or new) evidence that has become available since the appellant's conviction for the offence of murder'.
21 The additional evidence comprises an affidavit of Barry James Marshall sworn 31 July 2012 and an affidavit of Clive Trevor Cooke sworn 16 August 2012.
22 Ground 2 alleges, alternatively, that the verdict of guilty on which the appellant's conviction was based should be set aside because, having regard to the evidence (including the additional evidence), it is unreasonable or cannot be supported.
Professor Marshall's affidavit
23 Barry James Marshall is a Clinical Professor of Medicine and Microbiology at the University of Western Australia and a Consultant Gastroenterologist at Sir Charles Gairdner Hospital. He is also the Co-Director of the Marshall Centre for Infectious Disease Research and Training.
24 Professor Marshall deposes in his affidavit that, based on research carried out by him and Dr Robin Warren, it is his 'firm opinion' that it is highly unlikely that a duodenal ulcer would be caused by stress [11]. Indeed, he says that there is a less than 5% chance that stress alone would cause a duodenal ulcer [12].
25 According to Professor Marshall, while Dr Hainsworth's view in relation to the cause of Mr Kakulas' duodenal ulcer was consistent with generally accepted medical opinion at the time of the trial in 1983, it is highly unlikely that his ulcer was caused by the appellant's assault and the resulting fractured ribs and soft tissue trauma [63].
26 Professor Marshall then elaborated:
64. In my opinion, the duodenal ulcer probably already existed before the assault of 1 June 1983. Since duodenal ulcers come and go, it is statistically unlikely that any individual ulcer is actually occurring for the first time.
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- 65. It is my opinion that the injuries sustained by Mr Kakulas on 1 June 1983 did not contribute to the development, or accelerate the development, of Mr Kakulas' … duodenal ulcer.
66. The injuries sustained by Mr Kakulas on 1 June 1983 did not worsen Mr Kakulas' duodenal ulcer because the injuries were not especially severe. In fact he did not want to be admitted to hospital initially and after that was receiving excellent care.
67. Further, the injuries sustained by Mr Kakulas on 1 June 1983 did not contribute to the development, or accelerate the development of the bleeding of the duodenal ulcer because they were not of a severity to cause an ulcer.
68. While I believe that the ulcer in question existed prior to 1 June 1983, a duodenal ulcer is a recurring condition and it may have developed after this date. I can say this because the natural history of a duodenal ulcer is to come and go so when an ulcer is found, the day on which it developed cannot be determined exactly. The ulcer could have been one day old, five days old or older than that.
69. The date of the formation of the ulcer does not impact on my opinion that it was unconnected to the injuries suffered by Mr Kakulas on 1 June 1983.
Dr Cooke's affidavit
27 Clive Trevor Cooke is the Chief Forensic Pathologist in the Forensic Pathology section of PathWest Laboratory Medicine.
28 In June 2012, Dr Cooke was requested by the Office of the Director of Public Prosecutions (WA) to provide an opinion concerning Mr Kakulas' death in light of the issues raised by Professor Marshall.
29 Dr Cooke deposes that he has reviewed re-cuts of the microscope slides of body tissue samples taken during the post-mortem examination of Mr Kakulas' body. He undertook this review with Dr Priyanthi Kumarasinghe, a Gastroenterology Pathologist employed by PathWest. In carrying out their review they used additional tissue section stains to those used by Dr Hainsworth. Both Dr Cooke and Dr Kumarasinghe concluded independently that the duodenal ulcer showed 'features of chronicity, and therefore existed before the assault which occurred seven days prior to … Mr Kakulas' death' [4] (original emphasis). Dr Cooke also said that, microscopically, the base of the ulcer showed acute inflammation which reflects on-going, recent inflammatory activity [4].
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30 According to Dr Cooke, the extent to which (if at all) physical injury of the kind sustained by Mr Kakulas when assaulted by the appellant, or acute psychological stress, can exacerbate a pre-existing ulcer (to cause or worsen the inflammatory activity seen in the re-cuts of the microscope slides of Mr Kakulas' body tissue samples) is not known [7].
31 Dr Cooke said that the likely blood vessel which had haemorrhaged into the duodenal ulcer is seen in at least one of the microscope sections, and is within an area of active inflammation, but the precise site of rupture of the vessel is not seen. He added that there appears to be no medical evidence addressing the issue of increased likelihood of rupture of a blood vessel in the base of an ulcer following injuries of the type sustained by Mr Kakulas.
32 So, in summary, the duodenal ulcer showed microscopic changes of chronicity, as well as active inflammation, but it is Dr Cooke's opinion that how this activity may relate to the injuries or psychological stress sustained by Mr Kakulas is unknown [18].
The merits of the grounds of appeal
33 By s 140(1)(a) of the Sentencing Act, the petition referred by the Attorney General to this court is 'for the whole of the case to be heard and determined as if it were an appeal by the offender against the conviction'.
34 In Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, Gummow, Hayne, Callinan and Heydon JJ made these observations about the proper construction and application of s 140(1)(a):
Subject only to what we will say later about the words 'as if it were an appeal' which appear in s 140(1)(a) of the Act, the explicit reference to 'the whole case' (Sentencing Act 1995 (WA), s 140(1)(a)) conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words 'the whole case' embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words 'as if it were an appeal' are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case
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- requires the Court to apply the proviso contained in s 689(1) of the Criminal Code [10].
- See also Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 312 (Toohey & Gaudron JJ, Mason CJ & Brennan J agreeing).
35 It is unnecessary, in the present case, to consider whether under s 140(1)(a) this court is bound by the manner in which the prosecution case was run at trial.
36 The crucial aspects of Professor Marshall's evidence are that:
(a) Mr Kakulas' duodenal ulcer is likely to have existed before the assault on 1 June 1983;
(b) the injuries inflicted by the appellant on Mr Kakulas did not contribute to the development, or accelerate the development, of Mr Kakulas' ulcer; and
(c) the injuries inflicted by the appellant on Mr Kakulas did not contribute to the development, or accelerate the development, of the bleeding of his ulcer.
37 The crucial aspects of Dr Cooke's evidence are that:
(a) the extent to which (if at all) the physical injuries which the appellant inflicted on Mr Kakulas, or the psychological stress Mr Kakulas suffered as a result of the attack, can exacerbate a pre-existing ulcer (to cause or worsen the inflammatory activity seen in the re-cuts of the microscope slides of Mr Kakulas' body tissue samples) is unknown; and
(b) there appears to be no medical evidence which addresses the issue of the increased likelihood of rupture of a blood vessel in the base of a duodenal ulcer following injuries of the kind inflicted by the appellant on Mr Kakulas.
38 Neither Professor Marshall nor Dr Cooke was required for cross-examination.
39 In my opinion, when the whole case (including the evidence of Professor Marshall and Dr Cooke) is examined, the only reasonable conclusion open is that Professor Marshall's and Dr Cooke's evidence raises such a doubt that the appellant should not have been convicted of murder. If the jury had heard Professor Marshall's and Dr Cooke's
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- evidence, in addition to the evidence adduced at trial, it must necessarily have entertained a doubt about the appellant's guilt. The medical evidence before this court is incapable of proving beyond reasonable doubt that the appellant's assault upon Mr Kakulas caused or materially contributed to his death. A miscarriage of justice occurred at the trial.
40 Grounds 1 and 2 of the appeal have been made out.
Conclusion
41 I would allow the appeal, set aside the conviction for murder and enter a judgment of acquittal.
42 MAZZA JA: I agree with Buss JA.
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