R v Gill & Mitchell [2005] VSCA 321

Court of Appeal (Vic)|2005-12-22|Before: MAXWELL, P., CHARLES and NETTLE, JJ.A.

CRIMINAL LAW - Conviction - Murder - Manslaughter - Failure to leave verdict of manslaughter to jury - Conviction of both accused of murder - Where substantial miscarriage of justice.

1 Following a lengthy trial in the Criminal Division of the Supreme Court, on 26 September 2003 the applicants, Jason Russell Gill and Michael Patrick Mitchell, were convicted of having murdered Lazo Krincevski on the night of 14 December 2001. They now apply for leave to appeal against their convictions. Their principal proposed ground of appeal is that they have suffered a miscarriage of justice by reason that the trial judge did not leave manslaughter to the jury as an available alternative verdict.

"...There may remain a question whether, if a purpose to achieve such a result is required, his state of intoxication, whilst allowing the formation of an intent to do the physical act charged, may possibly be such as to preclude the formation of the relevant purpose. Whether it does so or not may need to be dealt with as a specific problem related to the particular degree of intoxication and to the nature of the relevant crime: and I do not pursue that question here. But the inclination of my mind is to think that no differentiation need be made in this respect." [10]

10 But there are also a number of difficulties in the way of the Crown's contentions. To begin with, the Crown's argument is evidently based on an assumption that the jury were satisfied to the requisite standard that the applicants were responsible for all of the injuries. That assumption is flawed. Undoubtedly, the evidence at trial was that the deceased was bashed over the head, had his throat cut and was stabbed in the front and in the back, and that each of those injuries was causative of his death. And certainly one of the ways in which the Crown put its case at trial was that each applicant should be found to have inflicted, or to have been complicit in the infliction of, each of those injuries. But the principal way in which the Crown put its case was that it was sufficient, in order to convict both applicants, for the jury to be satisfied of no more than that the applicants were responsible for bashing the deceased over the head.

11 Secondly, in our view it would be open to a jury on the evidence to take the view that the applicants were not necessarily responsible for all of the deceased's injuries. Indeed, apart from evidence given by the pathologist that all of the deceased's injuries were inflicted within the space of about half an hour, and evidence that the deceased was seen in company with the applicants close to where he was killed at a time shortly before he was killed, there was a paucity of evidence as to when, by whom or in what circumstances the stab wounds were administered.[11] There was also evidence that at least one other person was present at the time of the bashing - a witness, Stanbury, who turned Queen's evidence in return for being charged with the lesser offence of assisting an offender.[12] There were credible indications that there may have been a number of other people in the general vicinity, some of whom had been drinking at Mitchell's house with the deceased in the lead up to the killing, as well as a further witness, Allen, who had travelled home from the Breakers Night Club with Gill.

12 Relevantly, Stanbury's evidence against the applicants went no further than that he had came upon Mitchell and Gill as they stood in the front garden of the house in which the deceased was killed; that he then saw Gill drop the cover in such a way that it missed the deceased; that Mitchell then took up the cover, saying as he did so: "No, fuck him, I'll do it";[13] and that Mitchell then dropped the cover on the deceased's head. According to Stanbury, he and Mitchell and Gill then left the scene almost immediately, at Stanbury's urging, and returned on foot to Mitchell's house not far away. Stanbury added that, as they walked back to the house, Gill said: "Well, at least he got got good", and that Mitchell replied: "Oh, got his right whack, he deserved what he got, he's a dog", or something to that effect. But Stanbury did not notice any bleeding from or stab wounds to the deceased and he said that it was not until much later that morning that he learned that the deceased had been killed.[14]

13 Thirdly, there was cogent evidence that both accused were seriously drunk at the relevant time. Gill testified that on the afternoon of 13 December 2001 he attended cricket training and there consumed one stubby of beer before returning to Mitchell's home, where he was staying at the time. According to Gill's own estimate, once back at Mitchell's home he consumed between six and ten further VB stubbies, and was pretty drunk, before leaving for the Breakers nightclub with friends. He said that they arrived at Breakers between 2.30 and 3.00 am and that he there drank a further six to ten VB stubbies, before returning by an indirect route to Mitchell's house in the early hours of the morning, not long before the deceased was killed.

14 On this account, Gill drank between 13 and 20 stubbies, or in other words between 26 and 40 standard drinks, in the space of approximately ten hours. Mitchell appears to have been even more drunk. There was evidence that he had been drinking beer at home throughout the day. With the help of friends he had consumed two five litre kegs and a further slab of beer and then more "tinnies". He told investigators that he was so drunk that he was unable to go to Breakers as he had wanted to do, and so had remained behind and continued to drink with other friends. Other witnesses described him as "pretty much gone".

15 The evidence of intoxication was indeed sufficiently compelling to cause the judge of his own motion to give the jury a detailed O'Connor direction,[15] in which he summarised the evidence which bore upon the applicants' states of intoxication and told the jury that:

"...when ... considering with what intention the accused acted, you will bear in mind to the same effect, what was the consequence of the amount of alcohol which the accused consumed? Did that consumption of alcohol render the accused incapable of forming the necessary criminal intention? And, of course, in deciding what effect, if any, alcohol had upon the accused, you are entitled to have regard particularly to what the accused did."

16 Once the possibility is allowed that the applicants were responsible only for bashing the deceased, the level of intoxication of each applicant adds significantly to the possibility of a conviction for manslaughter as opposed to murder. For so long as it is assumed that the applicants not only bashed the deceased over the head with a concrete cable pit cover but also slashed his throat and stabbed him in the front and in the back, then, despite the degree of their intoxication, it presents as most unlikely that the applicants could have done those things with an intention falling short of intent to kill or inflict really serious physical injury. If, however, Mitchell did no more than bash the deceased over the head with the concrete cable pit cover, and Gill was somehow complicit in that conduct, then, because of the degree of the applicants' intoxication, it becomes a more realistic possibility that Mitchell's state of mind fell short of an intention to kill or inflict really serious injury and that Gill's rose no higher.

17 Putting it at the lowest, it is not altogether easy to exclude as a reasonable possibility that a seriously intoxicated man might bash another with a pit cover, with the intention of causing harm, but without being capable of thinking through how much harm would be inflicted, and that another seriously intoxicated man might stand by with a less than complete comprehension of what was taking place.[16] This is, of course, a quintessential jury question, which jurors would determine on the basis of their own experience and judgment.

18 Fourthly, in as much as it was part of the Crown case that Gill stood to be convicted as having aided and abetted Mitchell, once the possibility is allowed that Mitchell's state of mind fell short of an intention to kill or inflict really serious injury, and thus that Mitchell was properly to be convicted of manslaughter rather than murder, there is a realistic possibility that Gill also should have been convicted of manslaughter rather than murder.[17]

19 It would be different if Gill were convicted on the basis that he was acting in concert with Mitchell. In those circumstances it would be enough to render Gill guilty of murder that he had participated in a joint criminal enterprise to kill or inflict really serious injury, and that in carrying out that enterprise the deceased was killed, even if when Mitchell struck the fatal blow his mens rea fell short of intent to kill or inflict really serious injury. But we are inclined to think that counsel for Gill was correct in his submission that, in practical terms, any doubt as to Mitchell's mens rea would before a jury tend to accrue to the benefit of the Gill (given that it was Mitchell who was said to have caused the death).[18]

20 Finally, from Gill's point of view, there is a further possibility of a verdict of manslaughter even if Mitchell were convicted of murder. Assuming that Gill were convicted on the basis that he was acting in concert with Mitchell, it could still be that the scope of the joint criminal enterprise extended no further than inflicting actual bodily harm. In that event it would follow that, although Mitchell had gone beyond the scope of the enterprise in committing murder, Gill would still be guilty of no more than manslaughter.[19] Views may differ as to how likely that is. But, given Gill's state of intoxication, we do not think it unrealistic to posit that he went with Mitchell to inflict some harm on the deceased and that he picked up and dropped the pit cover near to the deceased with the intent of doing some harm to the deceased but to a level falling short of really serious injury. Then, in the state of intoxication and confusion which prevailed, Mitchell moved so quickly beyond the scope of the understanding that Gill was uncomprehending of what was happening as Mitchell crashed down the pit cover onto the deceased with the intent to kill him.

21 Admittedly, Stanbury's evidence as to the conversation on the return journey to Mitchell's house is opposed to that possibility. But, as it appears from the transcript, Stanbury was a most unsatisfactory witness - indeed, so bad that the prosecutor urged the jury to accept that it was open to convict without placing any reliance on Stanbury's testimony - and it may be that the jury would not have accepted that part of his testimony. Objectively, it was improbable. Stanbury was interviewed by police several times and made three statements, but it was not until he made his third statement, more than three years after the killing, that he mentioned the conversation. Moreover, Stanbury had every reason to minimise his own involvement and to maximise the liability of the applicants. As the judge correctly directed the jury, it would be dangerous to convict on the basis of Stanbury's evidence unless corroborated.[20] In point of fact, there was no corroboration of his evidence as to the conversation on the way back from the killing to Mitchell's home.[21]

22 All in all, we consider that upon one possible view of the facts it was open to convict the applicants of manslaughter rather than murder. It follows that, in failing to leave manslaughter to the jury as an available alternative verdict, the judge must now be taken to have committed an appealable error (even though as the law was understood at the time of trial, the judge acted correctly in accordance with it).

23 That leaves the question of whether it is open to apply the proviso.[22] In Gillard, it was said that the test of whether failure to leave manslaughter to the jury as an available alternative verdict is productive of a miscarriage of justice is whether it is clear that leaving manslaughter to the jury could not have made a difference. [23] According to that approach, one asks whether there is any doubt that, if the jury had been properly instructed on both murder and manslaughter, and were persuaded beyond reasonable doubt that the accused intended to commit the unlawful and dangerous act or acts which killed the deceased, the jury would have returned a verdict of murder. In our view there is a doubt.

24 The verdicts of guilty of murder imply that the jury were satisfied that each applicant was capable of forming the intent to kill or inflict really serious injury. Logic implies, therefore, that it could not have made a difference if the jury had been told that it was open to convict of manslaughter. But in this area of the law logic is no longer determinative. Consistently with Gilbert and Gillard, one is now to assume that juries do not reason "mechanistically" or "divorced from the realities."[24] Rather, as Gleeson, C.J. and Gummow, J. said in Gilbert -

" This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them." [25]

25 Strictly speaking, the test of whether the jury might have convicted of manslaughter rather than murder must be whether the state of the evidence in support of the intent to kill or inflict really serious physical injury is so strong that proper directions as to the legal consequences of entertaining a doubt about that matter could not have made a difference to the result. But, in terms of the practicalities of jury deliberations essayed in Gillard, the test is probably better expressed as one of whether the jury could have had a doubt about which of two possibilities reflected the applicant's state of mind. In this case, for the reasons which we have given, we consider that they could have had such a doubt.

26 That is not the end of the matter, however, for since this case was argued the High Court has brought down a decision in Weiss v The Queen,[26] which provides further guidance as to the way in which one is to approach the application of the proviso. According to Weiss, a court of criminal appeal is no longer to ask whether the error of law could not have made a difference to the verdict, but instead:

"... must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself." [27]

"...some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt."[28]

28 With respect, we regard those propositions as giving rise to some internal tensions, given that, for the purpose of assessing the application of the proviso, the appellate court must put aside the jury's verdict, while at the same time bearing in mind that the jury returned a guilty verdict; must bear in mind that the issues in a trial are shaped by the forensic decisions of counsel, while at the same time also bearing in mind that under the rule in Gillard forensic decisions of counsel are to be ignored; and, subject to the modifications mentioned, must endeavour to decide the case itself, as would occur in an appeal in a civil matter, but with the difference that, if in the end the appellate court is not satisfied beyond reasonable doubt that the evidence below established that the accused was guilty of the offence charged, the court must ordinarily order that a new trial be had.

29 We have examined the record for ourselves. In our judgment, this is a case in which the natural limitations do require us to conclude that we cannot reach the necessary degree of satisfaction. We are not satisfied beyond reasonable doubt that the applicants were proved to be guilty of murder. We consider that a new trial should be had.

Other grounds of appeal

30 In the circumstances, it is unnecessary to consider the other grounds and proposed grounds of appeal which were argued. But, in case something turns on it, we should say that we doubt that any of those other grounds is likely to have succeeded. As at present advised, we do not see in the directions which the judge gave to the jury any error or omission of the kind for which the applicants contend.

Conclusion and orders

31 For the reasons which we have given, we would grant each applicant leave to amend his notice of appeal, by adding the proposed ground 5, and we would allow the application for leave to appeal. We would further order that each appeal be treated as initiated and heard instanter and allowed, that the convictions entered against each applicant on 26 September 2003 be quashed, and that a new trial be had.

[1] (2000) 201 C.L.R. 414.

[2] Ross v The King [1922] HCA 4; (1922) 30 C.L.R. 246 at 254; R v Evans & Lewis [1969] VicRp 109; [1969] V.R. 858 at 871; R v Iannazzone [1983] VicRp 60; [1983] 1 V.R. 649.

[3] [1955] HCA 59; (1955) 93 C.L.R. 493 at 507, per Williams, Webb and Taylor, JJ. and at 508, per Fullagar, J.

[4] (2000) 201 C.L.R. 414 at 420 [14]-[17].

[5] [1969] HCA 68; (1969) 122 C.L.R. 444.

[6] (2000) 201 C.L.R. 414 at 441 [100], per Callinan, J.

[7] [2003] HCA 64; (2004) 219 C.L.R. 1.

[8] See at [2001] HCA 67; (2004) 209 C.L.R. 1 at 7[39]-[41], per Kirby, J.

[9] [1980] HCA 17; (1980) 146 C.L.R. 64.

[10] [1980] HCA 17; (1979) 146 CLR 64 at 72 -73, emphasis added.

[11] The judge commented on that lack of evidence in his sentencing remarks (Sentence at 1999[56]).

[12] Crimes Act 1958, s.325, for which he received a suspended sentence.

[13] T. 679

[14] See, e.g., evidence at 488-492, 520 & 541.

[15] The Queen v O'Connor [1980] HCA 17; (1980) 146 C.L.R. 64.

[16] See and compare R v Faure [1999] VSCA 166; [1999] 2 V.R. 537 at 543[17]-[19].

[17] Osland v The Queen [1998] HCA 75; (1999) 197 C.L.R. 316 at 341[71]; R v Iliovski & Shnider [2002] VSCA 172; (2002) 135 A. Crim. R 117 at 121[13].

[18] Cf. R v Lowery & King [No 2] [1972] VicRp 63; [1972] V.R. 560 at 560; Mc Auliffe v The Queen [1995] HCA 37; (1995) 183 C.L.R. 108 at 114.

[19] Markby v The Queen [1978] HCA 29; (1978) 140 C.L.R. 108 at 112; The Queen v Barlow (1997) 188 C.L.R. 1 at 11-12; Gillard v The Queen [2003] HCA 64; (2003) 219 C.L.R. 1 at 9[15].

[20] D.P.P. v Faure [1993] VicRp 87; [1993] 2 V.R. 497; Pollitt v The Queen [1992] HCA 35; (1992) 174 C.L.R. 558 at 605.

[21] See and compare R v Tamme [2004] VSCA 165 at [26] and [27].

[22] To s.568(1) of the Crimes Act 1958.

[23] Gillard v The Queen [2001] HCA 67; (2004) 209 C.L.R. 1 at 14[27], per Gleeson, C.J. and Callinan, J. and at 41[133], per Hayne, J.

[24] Gilbert v The Queen (2000) 201 C.L.R. 414 at 421[16].

[25] Ibid. at [17].

[26] [2005] HCA 81.

[27] Ibid. at [10], citations omitted.

[28] [2005] HCA 81 at [43].

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