Kerr v The Queen [2015] VSCA 135

1 On 15 May 2014, following a 12-day trial, the applicant was acquitted of one charge of murder, but convicted of the alternative charge of manslaughter. On 21 August 2014, following a plea on 4 August 2014, the applicant was sentenced to a term of imprisonment of seven years with a non-parole period of four and a half years. The applicant now seeks leave to appeal against her conviction on the sole ground that the guilty verdict on the charge of manslaughter is unsafe and unsatisfactory.

2 For the reasons that follow, we would refuse the applicant leave to appeal against her conviction.

3 In May 2012, the applicant and the victim (Mr Douglas Barrett) were in a relationship, the precise nature of which was not completely clear on the evidence. On the evening of 25 May 2012 the applicant and the victim were drinking together in a bungalow behind the victim's house. During the night, the applicant returned to where her son and her son's partner were living, and told them that she had just stabbed someone. The applicant's son called the police. The police arrived at the bungalow and found the deceased.

4 The cause of Mr Barrett's death was cardiac arrhythmia. There was a stab wound to Mr Barrett's neck and injuries to his eyes, particularly his right eye. The eye injuries (it is convenient to so describe them) were to the eyelids, rather than to the orbits.

5 At trial, two pathologists expressed the opinion that one or both of the injuries to the neck and eyes could have caused Mr Barrett's heart to stop (the cardiac arrhythmia), and therefore his death.

6 The applicant was convicted by the jury of unlawful and dangerous act manslaughter. According to the argument pursued for the applicant in this Court -

(1) Three possible factual bases were left to the jury as pathways to conviction for manslaughter. They were that death was caused by - (a) the neck injury; or (b) the injuries to the eyes; or (c) the injuries to the neck and eyes together.

(2) The Court cannot know which pathway the jury found was established. No pathway was more likely than another to have been found established, and as such it was not open to the jury to pick one pathway over another.

(3) It was not open to the jury to find that the acts which caused the eye injuries were dangerous; that is, that a reasonable person in the applicant's position would have realised that those acts were exposing the deceased to an appreciable risk of serious injury.

(4) It followed from (2) and (3) that the verdict was unsafe and unsatisfactory, because the jury, not being able to exclude the eye injuries as causative of death, must have had a reasonable doubt as to whether Mr Barrett's death was caused by a dangerous act or acts.

7 Counsel submitted that there was a 'paucity' in the evidence. It did not permit the jury to find that the acts causing the eye injuries were relevantly dangerous. The relevant acts may have been done by the applicant with her fingernails, when repelling what she claimed were the deceased's unwanted advances. They may not have been 'caused by anything more than some sort of hand motion during the course of a struggle'. It could not be said that they had been inflicted with a knife. Their multiplicity and individual extent made that unlikely. Acknowledging that what is 'serious' injury is a matter of fact and degree, quintessentially a matter entrusted to the jury, counsel nonetheless submitted that the Oxford English Dictionary definition of the adjective repeatedly associates it with the adjective 'grave'. He contended that the jury could not have concluded that an ordinary person in the applicant's position would have realised the acts which inflicted the eye injuries exposed the deceased to an appreciable risk of serious injury, so understood.

8 At trial, as the submissions noted above reveal, the prosecution case was that Mr Barrett's fatal cardiac arrhythmia was caused by one or both of oculocardiac reflex (caused by the eye injuries) and neurogenic shock (caused by the neck injuries). As part of its case on the charge of murder, the prosecution contended that it had negatived beyond reasonable doubt the applicant's contention that she acted in self-defence (the applicant having contended in her record of interview that she acted in self-defence as she believed that Mr Barrett was going to rape her).

9 In putting the prosecution to its proof on all elements of the charge of murder, the applicant contended at trial, inter alia, that the jury could not exclude beyond reasonable doubt the proposition that the cardiac arrhythmia was caused by pre-existing heart problems from which Mr Barrett suffered and/or 'the stress of the evening'. In the alternative, it was argued that the applicant had inflicted the various injuries upon the deceased in self-defence. The most likely explanation for Mr Barrett's eye injuries, it was said, was that the applicant caused them with her fingernails whilst she was pinned by Mr Barrett and trying to get him off her. As a further alternative, applicant's trial counsel raised the possibility that the applicant was in a dissociative state or was so intoxicated that she was unable to form the requisite intent when she stabbed the victim and/or inflicted the eye injuries.

10 The applicant made a record of interview. It went into evidence. There, the applicant explained that Mr Barrett had tried to rape her and that she had 'stabbed him in the eye'. Initially, she said that she stabbed him in the eye with a knife. Later, she said that she was not sure whether it was a knife. Subsequently, she described the implement she used as a 'long thing', and then said that she thought it might have been a screwdriver. She said nothing at all about having stabbed the deceased in the neck.

11 At trial, as we have already noted, two pathologists gave evidence. The injuries to the eyes included what the pathologists described as 'incised injuries'. According to their evidence, the incised injuries to the eyes could have been inflicted by fingernails (if they were very sharp) or a knife.

12 Dr Parsons, called for the prosecution, described an incised injury this way:

An incised injury is caused by something sharp, such as a knife or a tomahawk, something with a sharp edge which goes through the full thickness of the skin and causes smooth edges, straight edges.

13 In cross-examination of the doctor, there were these questions and answers:

They are, for want of a better term, all of those small incisions you say around the right eye. I think there is one in the left eye, injury number 12, is that correct?---Yes.

Being as objective as you are, those injuries around the eye could be fingernails, couldn't they?---Yes, if they were very sharp.

Of course. So that could be an indication to you that somebody with sharp fingernails has grabbed hold of this man's right eye?---Yes.

14 Dr Collins, called for the defence, gave this evidence:

They have been caused by a sharp instrument and that could be a knife or it could be a sharp fingernail. I don't think there's - there's nothing specific about them that would make one to favour one particular finding or interpretation or mechanism over the other.

15 In his final address, applicant's trial counsel did not address the question of manslaughter at all. He conducted the defence case on an 'all or nothing' basis. It was murder or nothing. So he said nothing about the dangerousness which is necessary to proof of unlawful and dangerous act manslaughter.

16 Neither did the prosecutor address the jury with respect to manslaughter - other than to say that the judge would say something about it.

17 In the event, as the case was conducted, it was left to the judge to direct the jury about manslaughter; and her Honour did so. This is what she said about dangerousness, against the background that she had already instructed the jury that it must be unanimous about which act, or acts, (if any) had caused death:[1]

Dangerous means that a reasonable person in the position of [the applicant] performing that act or acts would have realised that they were exposing Mr Barrett to an appreciable risk of serious injury. This is an objective test. This means that the prosecution doesn't need to establish that [the applicant] actually realised that what she was doing was dangerous. What matters is what a reasonable person of ordinary strength of mind in her position would have realised, and when I say 'in [the applicant's] position', I am referring to a person with her relevant personal attributes; that includes her age, 40 at the time of the incident, her physical condition including her relevant size and fitness. It also includes her knowledge.

Because you are considering the reasonable person in [the applicant's] position, not [the applicant], you must not take her degree of intoxication into account. The reasonable person is assumed not to be under the influence of alcohol ... In considering what a reasonable person would have realised, you assume that the reasonable person is not intoxicated.

...

When I say 'serious injury', I am not using a technical legal phrase. Once again, they are ordinary English words. It's for you to determine what they mean, but I would point out that this is a lower level of harm than is required for the third element of murder. You might remember when I was talking about murderous intent, I spoke about intent to kill or cause really serious injury. Here it's not really serious injury; it's serious injury.

18 The applicant did not at trial, and does not on this application, take any issue with this part (or indeed any part) of the judge's charge.

19 The argument articulated for the applicant in this Court, as can be seen, was not the case advanced for the applicant below. Not only did counsel not address the jury at all about manslaughter, at no stage did he make application to the judge, in the absence of the jury, to have her Honour take away from the jury the option of concluding that a reasonable person in the position of the applicant would have realised that her acts which caused the eye injuries exposed the deceased to an appreciable risk of serious injury. That is so despite the fact that, in discussion between counsel and the judge before final addresses, applicant's counsel conceded that the act causing the neck injury was relevantly dangerous, but stated that dangerousness was disputed with respect to the eye injuries.

20 Counsel for the applicant in this Court conceded, consistently with the 'all or nothing' way in which the trial was conducted, that trial counsel may have had legitimate reasons - objectively viewed - for not wanting the judge to explain to the jury (assuming that an application had succeeded) why the eye injuries did not meet the dangerousness criterion in the context of manslaughter. One objective possibility - this was not put by counsel - is that trial counsel may have been concerned that the jury would then have appreciated that the eye injuries could be used only in support of the Crown case on the more serious charge; the impact of such an appreciation being uncertain.

21 A party is ordinarily bound by the conduct of his or her trial. Where, objectively viewed, forensic decisions taken at trial were rational, an appellate court will be reluctant to conclude that the choices which were made led to an unfair trial or to a miscarriage of justice. But it is unnecessary to pursue those matters further in this case, because we do not doubt that there was evidence which permitted the jury to find that the acts which caused the eye injuries were relevantly dangerous. The applicant cannot show, as she must if she is to succeed, that the jury must, as distinct from might, have entertained a doubt about her guilt.[2]

22 The contention that the eye injuries could have been inflicted by the applicant's fingernails, in some sort of hand motion in the course of a struggle, was put to Dr Parsons. See the passage in her evidence cited at [13] above. So also, see [14] above, Dr Collins adverted to the possibility of the eye injuries being caused by a 'sharp fingernail'. But to say that a mechanism of injury was possible says nothing about whether it had an evidentiary foundation in the particular case It had none in this case. The applicant did not give evidence at trial. Her record of interview was to the effect that she stabbed the victim in the eye with a knife or a screwdriver or some other implement meeting the description of a 'long thing'. But even accepting that what she said in the interview was confused, and even if it had been open to the jury to conclude that the eye injuries had been caused by the applicant's 'sharp' or 'very sharp' fingernails - and, we interpolate, there was no evidence at all about the state of her fingernails at the time of Mr Barrett's death - the jury might still have readily concluded that the applicant's acts carried the relevant risk. It was plainly open to the jury to find that, whatever sharp instrument was used by the applicant in inflicting the eye injuries, the applicant engaged in a dangerous act. We see no reason why, taking the scenario put by defence counsel to Dr Parsons as noted at [13] above, the jury would not have concluded that the postulated conduct was indeed dangerous. The matter was properly left to the jury, and its conclusion, on a matter of fact and degree, is impregnable.

23 The Court will order that the application for leave to appeal be refused.

[1] A prudential instruction favourable to the applicant, the correctness of which did not fall for consideration in this Court.

[2] See Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596 [113] (Hayne J).